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64th Congress ) HOUSE OF EEPRESENTATIVES. ^ Report 

1st Session. \ [ No. 779. 



LANDS FOR EDUCATIONAL PURPOSES. 



May 29, 1916.- — Committed to tlie Committee of the Wliole House on tlie state of 
the Union and ordered to be printed. 



Mr. Raker, from the Committee on the Public Lands, submitted the 
'^ following 

REPORT. 

[To accompany H. R. 15096.] 

The Committee on the Public Lands, to whom was referred the bill 
(H. R. 15096) to amend the act entitled "An act to amend sections 
twenty-two hundred and seventy-five and twenty-two hundred and 
seventy-six of the Revised Statutes of the United States, providing 
for the selection of lands for educational purposes in lieu of those 
appropriated," and to authorize an exchange of lands between the 
United States and the several States, having had the same under con- 
sideration, recommend the following amendments : 

(1) On page 2, line 10, after the word "character," insert the fol- 
lowing: "and which were subject to selection at the time the appli- 
cations were filed." 

(2) On page 4, line 10, after the w^ord " character," insert the fol- 
lowing: "and which were subject to selection at the time the appli- 
cations were filed." 

(3) On page 4, line 15, after the word " may," insert the following: 
" within the discretion of the Secretary of the Interior." 

(4) On page 4, line 15, strike out the word " by " and insert in lieu 
thereof the word " under." 

(5) On page 4, line 25, after the colon and before the word "And," 
insert a new proviso to read as follows : 

Provided further, That all lands within the boundaries of national forests, 
title to which may be vested in the States under the provisions of this act, shall 
be subject to all rights of way which the Secretary of Agriculture may at any 
time deem necessary for the administration of the national forests. 

(6) On page 5, line 3, after the word "State" and before the 
word " vacant," insert the following : " and with the approval of 
the Secretary of Agriculture." 

(7) On page 5, line 3, after the word "nonmineral" and before 
the word " public," insert the word " surveyed." 



2 LANDS FOE EDUCATIONAL PUEPOSESi , m \ i? 

(8) On page 5, line 4, strike out the word " acreage " and insert 
in lieu thereof the word " value." 

(9) On page 5, line 4, after the word "forests" and before the 
word " may," insert the following : " designated b}^ the Secretarj^ of 
the Interior." 

(10) On page 5, line 6, after the word "Act" and before the 
colon insert a comma and the following : " but nothing herein shall 
prevent the consummation of the agreement dated June 16, 1911, 
between the Secretary of the Interior and the State of California 
providing for the adjustment of the claim of the United States 
against the State, because of excess approvals and overcertifications 
under the grant for common schools, through surrender or con- 
veyance by the State of surveyed school sections within the boun- 
daries of national forests." 

(11) On page 5, line 8, after the word "discretion," insert the 
following: "if they shall find that the public interest will be sub- 
served thereby." 

As thus amended, the committee unanimously recommend that the 
bill do pass. 

The bill as thus amended is as follows : 

A BILL To amend the act entitled "An act to amend sections twenty-two hundred and 
seventy-five and twenty-two hundred and seventy-six of the Revised Statutes of the 
United States providing for the selection of lands for educational purposes in lieu 
of those appropriated," and to authorize an exchange of lands between the United 
States and the several States. 

Be it enacted by the Senate and House of Representatives of the United 
States of America in Congress assembled, That the provisions of the act of 
Congress approved February twenty-eighth, eigliteen liundred and ninety-one 
(Twenty-sixth Statutes at Large, page seven liundred and ninety-six), en- 
titled "An act to amend sections twenty-two hundred and seventy-five and 
twenty-two hundred and seventy-six of the Revised Statutes of the United States 
providing for the selection of lands for educational purposes in lieu of those 
appropriated for other purposes," are hereby declared applicable to all grants 
of school lands heretofore made by Congress, and all selections heretofore made 
and approved under said grants and in accordance with said act of February 
twenty-eighth, eighteen hundred and ninety-one, if otherwise lawful, are hereby 
ratified and confirmed ; that all pending and unapproved selections heretofore 
made under said grants and in accordance with said act, if found otherwise 
valid, and for lands which are nonmineral in character and which were subject 
to selection at the time the applications were filed and which have not, prior to 
date of approval, been withdrawn under the provisions of the act of June 
twenty-fifth, nineteen hundred and ten (Thirty-sixth Statutes at Large, page 
eight hundred and forty-seven), may be approved under the provisions of said 
act of February twenty-eighth, eighteen hundred and ninety-one : Provided, 
That nothing herein shall be construed as preventing the approval of selections 
included within withdrawals under the provisions of said act of June twenty- 
fifth, nineteen hundred and ten, subject to conditions, limitations, or reserva- 
tions authorized or permitted by present or future acts of Congress relating to 
such withdrawn lands if the surface of such land is found by the Secretary 
of the Interior to be of substantial value for agriculture, grazing, or timber. 

Sec. 2. That the act of Congress approved February twenty-eighth, eighteen 
hundred and ninety-one, entitled "An act to amend sections twenty-two hundred 
and seventy-five and twenty-two hundred and seventy-six of the Revised 
Statutes of the L^'nited States, providing for the selection of lands for educa- 
tional purposes in lieu of those appropriated for other purposes," is hereby 
amended by adding thereto the following : 

" That as to all surveyed or unsurveyed sections in place granted or reserved 
to the use of schools and included within national forests it shall be lawful for 
the State in pursuance of an agreement, either prior or subsequent hereto, 
between the State and the Secretary of Agriculture to relinquish its claim, right, 
and title thereto and select in lieu thereof other unappropriated nonmineral 



D, of D. 



LANDS FOR EDUCATIONAL PURPOSES. 3 

lands of approximately equal value designated by the Secretary of Agriculture 
and lying within the boundaries of any national forest or forests within the 
State wherein the exchange is to be made ; that upon the consummation of the 
exchange herein authorized and its approval by the Secretary of the Interior 
the President of the United States is authorized to eliminate from such 
national forest the lauds so selected for and on behalf of the State : Provided, 
That the lands granted in place to such State or Territory and surrendered 
under the provisions hereof shall, upon the approval of the indemnity or ex- 
change, revert to and become a portion of the national forest wherein located 
subject to all the laws, rules, and regulations thereto applicable. 

Sec. 3. That exchanges of title between the United States and States hereto- 
fore made and approved under authority of said act of February twenty-eighth, 
eighteen hundred and ninety -one, whereby the State relinquished its title to 
surveyed school lands in forest or other permanent reservations in lieu of lands 
elsewhere are hereby ratified and con-firmed, and all pending and unapproved 
exchanges of like character and which were subject to selection at the time the 
applications were filed, if found otherwise valid, and for lands which are non- 
mineral in character, and which have not prior to date of approval been with- 
drawn under the provisions of the act of June twenty-fifth, nineteen hundred 
and ten (Thirty-sixth Statutes at Large, page eight hundred and forty-seven), 
may within the discretion of the Secretary of the Interior be approved under 
the provisions of said act of February twenty-eighth, eighteen hundred and 
ninety-one : Provided, That nothing herein shall be construed as preventing 
the approval of selections included within withdrawals under the provisions of 
said act of June twenty-fifth, nineteen hundred and ten, subject to conditions, 
limitations, or reservations authorized or permitted by present or future acts 
of Congress relating to such withdrawn lands, if the surface of such land is 
found by the Secretary of the Interior to be of substantial value for agriculture, 
grazing, or timber : Provided further. That all lands within the boundaries of 
national forests, title to which may be vested in the States under the provisions 
of this act, shall be subject to all rights of way which the Secretary of Agri- 
culture may at any time deem necessary for the administration of the national 
forests : And provided further. That in the future exchanges may be made and 
approved as provided in section two of this act or at the election of the State, 
and with the approval of the Secretary of Agriculture, vacant unappropriated 
nonmineral surveyed public lands of equal value outside the limits of national 
forests designated by the Secretary of the Interior may be selected in lieu of 
lands surrendered or relinquished under the provisions of this act, but nothing 
herein shall prevent the consummation of the agreement dated June sixteenth, 
nineteen hundred and eleven, between the Secretary of the Interior and the 
State of California providing for the adjustment of the claim of the United 
States against the State, because of excess approvals and overcertifications under 
the grant for common schools, through surrender or conveyance by the State of 
surveyed school sections within the boundaries of national forests : And pro- 
vided further. That the Secretary of the Interior and the Secretary of Agri- 
culture are hereby authorized, in their discretion, if they shall find that the 
public interest will be subserved thereby, to exchange lands within the limits 
of national forests for lands outside of such limits of approximately equal 
value lost to the State by reason of settlements, entries, reservations, or the 

i mineral character of the lands. 

i Sec. 4. That the agreements between the States of South Dakota and Idaho 
and the United States, dated January fourth, nineteen hundred and ten, and 
October fourth, nineteen hundred and eleven, respectively, so far as hereto- 

I fore consummated in accordance with the proclamations of the Presidenr, dated 

I' February fifteenth and June fourth, nineteen hundred and twelve, and xMarcli 

I third, nineteen hundred and thirteen (Twenty-seventh Statutes at Large, pages 
seventeen hundred and twenty-nine, seventeen hundred and forty-three, and 
seventeen hundred and seventy-seven), are hereby ratified and confirmed. 

I Sec. 5. That the provisions of this act shall be applicable only where the State 
is now authorized by law to make the selections, relinquishments, or exchanges 
permitted by this act, or shall, by constitutional legislative enactment, authorize 

; such selections, relinquishments, or exchanges. 

I The bill H. E. 15096 is substantially like H. E. 8491, upon whieh 

li the Secretary of the Interior had already submitted report and upon 

which the committee held full and exhaustive hearings. The bill 



4 LANDS FOE EDUCATIONAL PUKPOSES. 

contains some modifications of H. E,. 8491. designed to improve the 
measure and to render it more satisfactory to all concerned. 

The bill was referred to the Department of the Interior, and on 
May 10, 1916, Hon. Franklin K. Lane, Secretary of the Interior, 
made favorable report thereon, recommending rhe passage of the 
bill, which report is as follows: 

Department of the Interior, 

Washington, May 10, 1916. 

My Dear Mr. Ferris. I am in receipt of your request for report upon H. R. 
15096, a bill designed to facilitate the adjustment of tlie school-land grant 
to the various States and to permit of the taking of indemnity or exchanges of 
land in connection therewith. 

The bill is substantially like H. R. S491, upon which I have already submitted 
report, but contains some modifications designed to improve the measure and to 
render it more satisfactory to all concei'ned. 

It has been the general policy of Congress to grant to the various States two, 
and in some instances four, sections of public lands in place in each township 
for the support of public schools. The act of February 28, 1S91 (26 Stat, 796), 
amending sections 2275 and 2276 of the Revised Statutes, has, in the past, been 
regarded and treated by this department as a general adjustment act, permit- 
ting the States to select other vacant nonmineral public lands in lieu of losses 
to the grant in place; that with respect to the establishment of national forests 
and other reservations, including within their exterior limits unsurveyed school 
sections, the reservation operated to defeat the grant in place, but entitled the 
State to lands in lieu thereof, and that as to school lands surveyed prior 
to the establishment of such reservations, the State might, under the so-called 
exchange provisions of tlie act, surrender its title to such surveyed sections in 
exchange for public lands. 

With respect to the school-land grant made to the States of Washington, 
Montana, North Dakota, and South Dakota by the act of February 22, 1889 
(25 Stat, 676), the Supreme Court of Washington, in the case of the State v. 
Whitney, held, in substance, that the grant was a present one, applicable to all 
lands, whether surveyed or unsurveyed. The three other States named have 
not made this contention, but have offered lieu selections or exchanges for 
lands lost or included within national forests. 

In the case of Hibberd v. Slack (84 Fed., 571), involving school sections in 
California, surveyed prior to their inclusion in a reservation, the court held, in 
substance, that the act of February 28, 1891 (supra), does not authorize the 
State to surrender school lands in place surveyed prior to the creation of the 
reservations in exchange for other public lands. This decision was followed 
in the case of Deseret Water, Oil & Irrigation Co. v. State of California (138 
Pac, 981). There have been other decisions of State courts dealing with and 
complicating the question of these grants and exchanges, but the former rulings 
of this department have been as first above stated. (See 28 L. D., 59, and 41 
L. D., 621.) 

The situation with respect to these grants is therefore that the former rul- 
ings and practices of this department have been questioned or controverted by 
decisions of the State courts and in one instance by the decision of a Federal 
court, with the result that the department has felt it incumbent upon it to sus- 
pend pending applications for indemnity selection or for the exchange of lands 
and to refuse to entertain further applications therefor. This situation has re- 
sulted in delay and hardship to the States and to purchasers of lieu lands from 
the various States and calls for action which will enable the United States and 
the States to adjust and settle these grants. 

Section 1 of H. R. 15096 declares that the provisions of sections 2275 and 
2276 of the Revised Statutes, as amended by tlie act of February 28, 1891, are 
applicable to all grants of school lands heretofore made by Congress, and pro- 
poses to ratify and confirm all pending and unapproved indemnity selections 
heretofore made for losses incurred under the school grants and in accordance 
with the statutes just cited, if otherwise valid and for nonmineral lands, unless 
the same have been reserved under the act of June 25. 1910 (36 Stat, 847). 
With respect to lands so withdrawn, it is provided that selections made prior to 
such withdrawals may be approved subject to such conditions, limitations, or 
reservations as may be authorized by present or future acts of Congress. The 



LANDS FOR EDUCATIONAL PURPOSES. 5 

latter clause has particular reference to lauds withdrawu because of their oil 
or phosphate content, in which cases the act of Congress of July 17, 1914 (38 
L. D., 509), permits, under appropriate conditions, the issuance of a patent for 
the selected land, reserving to the United States, however, all of the minerals 
therein, with the right to enter upon the land, extract, and remove such miner- 
als. The last-described clause is only proposed to be made applicable to lands 
the surface of which is found to be of substantial value for agriculture, grazing, 
or timber. 

Section 2 of the bill proposes a method for the exchange of surveyed school 
sections in national forests owned by the State and for the taking of indemnity 
for unsurvej^ed sections lost to the State by the creation of the forest, providing 
that the State and the Federal authorities may enter into an arrangement 
whereby the said lauds scattered throughout various parts of the national forest 
may be surrendered and a solid block or blocks of lands of approximately equal 
value within the boundaries of any national forest within the State may be 
acquired in lieu thereof. This is manifestly to the advantage of all parties 
concerned. 

Section 3 proposes to ratify the exchanges heretofore made under the practice 
of this department of surveyed school sections in place in forest and other 
reservations for vacant nonmineral public lands of the character described in 
the bill, and further provides that exchanges in future may be made either in 
the form provided in section 2 or. at the election of the State, vacant uuappro- 
-priated nonmineral public lands of equal acreage outside the limits of national 
forests may be taken in lieu of lands surrendered or relinquished within the 
forest, or at the discretion of the Secretaries of the Interior and Agriculture 
State lands outside may be exchanged for lands within national forests. 

Section 4 ratifies agreements of exchange heretofore made between the States 
of South Dakota and Idaho and the United States, concerning consolidation of 
holdings within national forests in those States. 

Section 5 provides that the provisions of the act shall be applicable only 
where the State is now authorized by law to make such selections, relinquish- 
ments, or exchanges, or shall hereafter by constitutional legislative enactment 
authorize same to be done. 

The only amendment I have to suggest to the bill as now presented is the 
insertion of the word " surveyed " preceding the word " public," in line 8, 
page 5, so that the clause will read " vacant unappropriated nonmineral sur- 
veyed public lands." 

As stated herein and in previous correspondence, the department is heartily 
in favor of the enactment of this measure, believing that it will be of mutual 
benefit to the States and the Federal Government, and that it will permit of an 
early adjustment of the school grants. I therefore recommend that it receive 
the approval of Congress. 
Cordially, yours, 

Franklin K. Lane, Secretary. 

Hon. ScoTT Feeeis, 

Chairman Committee on the Public Lands, House of Rerpresentatives. 

The bill (H. E. 15096) was referred to the Department of Agri- 
culture, and on May 24, 1916, Hon. David F. Houston, Secretary 
of Agriculture, made favorable report thereon, which report is as 
follows : 

Department of Ageicultuee, 

Washington, May 2-i, 1916. 
Hon. Scott Feeeis, 

Chairman Committee on the Public Lands, House of Representatives. 

Deae Me. Feeeis : I wish to acknowledge receipt of a copy of the bill ( H. R. 
15096) providing for the adjustment of outstanding selections and exchanges 
of land with the various public-land States and authorizing certain agree- 
ments and exchanges for the purpose of adjusting certain grants of public 
lands to the various States for school purposes. Your committee has requested 
a report on this bill, together with suggestions and recommendations from 
this department. 

This measure is one of unusual importance, not only to the States directly 
concerned, but also to the Federal Government, because of the relation such 
lands bear to the national forests and the public domain. However, this phase 
of the matter is one which has already been considered in datail, is fully 



6 LAXDS FOE EDUCATIOI^AL PUEPOSES. 

nnderstood aud appreciated by your committee, and therefore does not require 
specific elaboration. 

Careful consideration has been given to the measure no^Y before me, aud it 
is believed that, with a few minor changes, the measure is one which will pro- 
vide for the adjustment of all outstanding differences, and result in the securing 
of substantial justice to all parties in interest. It is understood that the 
changes which I have in mind have already been considered and approved by 
your commitee. 

It is recommended that the bill be amended by inserting after the word 
" character " in line 10. page 2. the following : "And which were subject to 
selection at the time the applications were filed." 

The purpose of the amendment is obvious. The same wording should also be 
inserted after the word " character " in line 11. page 4. for the same reasons. 

It is recommended that the bill be amended by inserting the following words 
after the word " may " in line 15. page 4 : " Within the discretion of the Secre- 
tary of the Interior." Also, that the word " under " be substituted for the word 
" by " in the same line. Under this section as amended the Secretary ol the 
Interior's authority to approve exchanges of title is confirmed so as to remove 
present existing doubts, thereby empowering him to approA^e such exchanges 
with absolute certainty of legality, while at the same time reserving to him the 
usual discretion vested in his office, in order that public interests may be pro- 
tected where the circumstances are such as to justify the disapproval of an ap- 
plication for some specific tract of land. Without the provisions in this sec- 
tion, pending lists, involving a total area of 383,500 acres of land selected by 
the diiferent States, would be left in uncertainty. Without the restrictive pro- 
visions included in this section and its proposed amendment, title to the entire 
area would be confirmed in the States, regardless of the situation in any 
special case. 

While not specifically called to the attention of your committee hitherto, it 
would appear desirable to similarly amend section 1 for the same reasons, in- 
serting the same wording after the word " may " in line 13. page 2. 

I also recommend that section 3 be amended by including after the word 
" timber " in line 25. page 4. the following proviso : 

"And provided further. That all lands within the boundaries of national 
forests to which title may be vested in the States under the provisions of this 
act. shall be subject to all rights of way which the Secretary of Agriculture 
may at any time deem necessary for the administration of the national forests." 
In reference to this proviso, it is iinderstood by your committee that a great 
many unapproved selections lying within the exterior boundaries of national 
forests will pass to the States under the provisions of this measure. This land 
is included in lists which were filed with the General Land Office before the land 
was withdrawn for national-forest purposes. Since then national forests have 
been established and the lands in question are now surrounded by national- 
forest .timberlands. Without entering into a discussion of the legal rights of the 
States, based upon such lists, it is recognized that the States have established 
equities which should be taken into consideration. On the other hand, the inter- 
ests of the national forests should be safeguarded, so far as this can be done 
without undue injury to the States or to innocent purchasers from the State. It 
is believed that the right-of-way provision will meet the situation fairly as to 
the vast majority of cases. It is also understood that its necessity and fairness 
is recognized and admitted by the different witnesses who have appeared before 
j-our committee on behalf of the State. The necessity of such provision, from an 
administrative standpoint, is obvious. 

The same section, on page 5, should be further amended by inserting after 
the word " State," in line 3, the following : " and upon the approval of the Secre- 
tary of Agriculture " ; also by inserting the word " surveyed " after the word 
" nonmineral " in the same line and same page : also by striking out the word 
" acreage " in line 4. page 5. and inserting the word " value " : also by inserting 
after the word " forests," same line and same page, the words " designated by 
the Secretary of the Interior." The reasons for each of the foregoing suggested 
amendments are quite apparent, and, it is understood, are fully appreciated by 
your committee. 

The last proviso of the .same section should, in the opinion of this department, 
be amended by inserting after the word " discretion " in line 8, page 5, the fol- 
lowing : " if they shall find that the public interest will be subserved thereby." 
It is understood that your committee fully understands and appreciates the 
reasons for this suggested amendment and that the same meets with your ap- 



LANDS FOR EDUCATIONAL PUEPOSES. 7 

proval. I am unofficially advised that your committee merely desires to em- 
power the two departments to make such exchanges whenever it is in the public 
interest, but does not wish this proviso to be accepted in any sense as being 
directory or as expressing any wish or intent upon the part of Congress in oppo- 
sition to full administrative discretion in deciding when such action would be in 
the interest of the public. 
Very truly, yours, 

D. F. Houston, Secretary. 

The proposed legislation affects the school-land grants in 13 of the 
Western public-land States, namely, California, Oregon, Nevada, 
Colorado, Washington, Montana, North Dakota, South Dakota, 
Idaho, Wyoming, Utah, New Mexico, Arizona. 

The amended bill, as reported by your committee to the House and 
which is hereinbefore set out, represents the consent and approval 
of the 13 States involved, through their Representatives in Congress, 
as well as the governors, their State officials having charge of this 
matter in the several States; likewise the approval of the Department 
of the Interior and the Department of Agriculture, as well as the 
unanimous support of the Committee on the Public Lands. 

The original bill upon the subject was H. R. 8491, upon which 
extended hearings Avere had and consideration given by the com- 
mittee as well as by subcommittee. At all times the representa- 
tives of the Department of the Interior and Department of Agricul- 
ture were present to give their assistance and aid to the committee. 
After such hearings by the full committee and the subcommittee, 
H. R. 15096 Avas introduced to take the place of the former bill. H. R. 
15096 was again fully considered by subcommittee and then by the 
full committee and the amendments to H. R. 15096 were approved 
by the Department of the Interior, the Department of Agriculture, 
as well as by the full committee, and the committee, therefore, be- 
lieves that after the extended hearings and the full and careful con- 
sideration the bill as amended, which is herewith reported to the 
House, will fully, fairly, and properly adjust the land matters in- 
volved in fairness to the Government and the several States inter- 
ested ; the proposed legislation having the approval, as before stated, 
of all concerned. 

The same matter having been before the Committee on the Public 
Lands, and involving the same question, the report of the Attorney 
General of the Department of Justice made on February T, 1912, is 
as follows: 

Department of Justice, 

Washington, February 7, 1912. 
Hon. .Joseph T. Robinson, 

Chairman Committee on the Fuhlic Lands, House of Representatives. 

Sie: I have received your letter of February 3, 1912, inclosing for such sug- 
gestions and recommendations as may be deemed necessary, a copy of H. R. 
19344, Sixty-second Congress, second session, authorizing the Secretary of the 
Interior to exchange lands for school sections within Indian, military, and other 
reservations. 

This bill authorizes the Secretary of the Interior to make exchanges of lands 
•with the several States for those portions of school sections, Avhether surveyed 
or unsurveyed, lying within the exterior limits of any reservation, the exchange 
to be made in the manner and form and subject to the limitations of sections 
2275 and 2276 of the Revised Statutes, as amended by the act of February 28, 
1891 (26 Stat., 796), and provides that any such exchange, whether heretofore 
or hereafter made, shall restore to the United States full title to the base land 
without any formal conveyance by the State. 



8 LANDS FOR EDUCATIONAL PURPOSES. 

I have the honor to advise you that authority to make exchanges of school sec- 
tions included within the exterior boundaries of reservations, prior to the 
survey of such school sections, already exists under the act of February 28, 
1891, supra. The Department of the Interior also holds that authority likewise 
exists under the said act of 1891 to make exchanges of school sections included 
within the exterior limits of reservations even after the survey of such school 
sections. See 34 Land Decisions, 599, and cases cited, and I understand that 
many thousands of acres of such lands have been exchanged. However, it has 
been held by at least one Federal court that the act of 1891 does not authorize 
fi State to exchange school lands which had been surveyed prior to the creation 
of the reservation within the exterior limits of which the school section is em- 
braced. (Hibbard v. Slack, 84 Fed., 579.) It would seem, therefore, that the 
enactment of some such legislation as that proposed in this bill will serve a 
useful purpose. 

Respectfully, Ernest Knaebel, 

(For the Attorney General), 

Assistant Attorney General. 

During the same consideration by the Committee on the Public 
Lands in 1912, the Department of the Interior, on February 19, 
1912, Mr. Samuel Adams, Acting Secretary of the Interior, made the 
following report: 

Depaetment of the Intekioe, 
Washington, February 19, 1912. 
Hon. Joseph T. Robinson, 

Chadrman Committee on tJie Public Lands, House of Representatives. 

Sir : In response to your request for a report on House bill 19344. entitled 
"A bill to authorize the Secretary of the Interior to exchange lands for school 
sections within an Indian, military, national forest, or other reservation, and 
tor other purposes," I have the honor to submit the following : 

It is understood that the bill was introduced at the instance of the officials 
of the State land department of the State of California for the purpose of and 
with a view to aiding the State in the adjustment of the grant to the State 
for common-school purposes, which has been in a very unsatisfactory condi- 
tion and practically a state of suspension for several years. The provisions 
of the bill are largely declaratory of the act of February 28, 1891 (26 Stat., 
796), amending sections 2275 and 2276 of the United States Revised Statutes, 
as construed and administered by the department for a number of years, but 
as framed expressly authorize exchanges of lands which are within the exterior 
limits of any Indian, military, national forest, or other reservation. It is 
also provided that any such exchange, whether heretofore or hereafter made, 
shall restore full title to the United States to the base land, upon approval of 
such exchange, without formal conveyance thereof by the State. 

School sections in national forests are now held to be subject to exchange 
under the provisions of the act of 1891, supra, as lands being otherwise reserved, 
whereas the bill expressly authorizes the exchange of such lands, whether sur- 
veyed or unsurveyed, and vests title in the United States to such sections which 
have heretofore been used as base for selections made and approved to the 
various States. 

Under the act of 1891, as now administered, the exchanges made thereunder 
are not complete and title to the tracts of land exchanged does not vest in the 
State until the approval thereof by the Secretary of the Interior, and the sub- 
sequent certification of the selections to the State by the General Land Office. 
The title vests in the contracting parties upon the date of the certification and 
not on the date of the approval of the selections. 

As to the clause in the bill providing that no formal conveyance of the base 
tracts by the State to the United States be necessary to vest title, it may be 
stated that no such conveyances have been required by the department for a 
number of years. In an opinion of the Assistant Attorney General of the 
department, dated January 26, 1901 (30 L. D., 438), the deed of reconveyance 
was held not to be necessary, for the reason that the selection of indemnity 
of itself amounted to a waiver of the State's claim, or, in other words, operated 
to transfer the legal title of the State to the United States. 

In that opinion, the right of the State to indemnity for school lands in forest 
reserves is dependent solely on the proposition that the selection of indemnity 
constituted a waiver of the State's claim, and that Congress has full authority 



LANDS FOR EDUOATIOlSrAL PURPOSES. 9 

to declare what effect shall be given to such a selection, and no distinction 
could be based upon the fact that the title to the base lands had or had not 
vested in the State prior to the selection. 

There may have been some doubt heretofore as to the meaning of that clause 
of section 2275, Revised Statutes, under which exchanges of school lands be- 
tween the several States and the United States are now effected. If any such 
doubt has existed, it will be conclusively removed should this bill be enacted 
into law, and for this reason I recommend that the bill be passed. 
Very respectfully, 

Samuel Adams, Acting Secretary. 

Now, to bring the matter fully before the House, on June 16, 1911, 
the attorney general, of the State of California and the surveyor 
general of California appeared at Washington and had a conference 
with the United States Attorney General and also the Secretary of 
the Interior and the Commissioner of the General Land Office in 
regard to the lands in the State of California which are tied u]3 and 
creating a great deal of trouble between those that claimed them — 
the State and others — and amounting to somewhere from 250,000 to 
300,000 acres of land. 

This is the basis of adjustment. It reads as follows: 

BASIS OF ADJUSTMENT. 

(1) That there be paid to the United States, as under the provisions of the 
act of Congress approved March 1, 1877 (19 Stat., 267), $1.2.5 per acre in satis- 
faction of all excess certifications of indemnity school lands which occurred 
prior to the date of approval of said act, and for which said lands no payment 
has as yet been made to the United States. 

(2) That new and valid bases be designated by the State for all selections 
that have been or may be approved, made on basis of lands in sections 16 and 
36, claimed or reported to be mineral in character, or embraced in forest or 
other reservations, and wherein such base tracts have been or may be, sold or 
encumbered by the State; provided, however, that new base need not be desig- 
nated in any case where the United States has disposed of, by patent, the 
tract in lieu of which indemnity was claimed and granted. 

(3) That new and valid bases be designated by the State for approved selec- 
tions in all cases wherein there have been, or may be, excesses in certifications 
occuring since March 1, 1877. 

(4) That lands in sections 16 and 36, which, under the provisions of the act 
of Congress approved March 1, 1877 (19 Stat., 267), are the property of the 
United States, and which have been sold or encumbered by the State, are to be 
selected by the State, it being understood that the requirements of publication 
of notice and the filing of nonmineral affidavits in support of such selections 
be waived by the Land Department of the United States. 

(5) That the State of California will enact such additional laws as may be 
necessary to carry into effect the plan of adjustment herein contained, and the 
Land Department of the Federal Government will favor and will use its good 
offices to have passed and approved such legislation by Congress as may be 
necessary to consummate such plan. 

(6) That the Land Department will immediately proceed with the listing 
of all selections made by the State where the base is free from objection and the 
lands applied for are subject to selection by the State ; provided the governor 
of the State of California shall first agree to specify and state in a call or 
proclamation for a special or extraordinary session of the State legislature, to 
be made and held some time during the year 1911, as one of the purposes for 
which the legislature is so convened, the subject and consideration of such 
legislation as may be required to consummate the within plan of settlement : 
And provided further, That if such necessary laws be not enacted at such special 
session the plan of adjustment herein contained may be deemed without force 
and effect. 

Under and in pursuance of this agreement the governor of the 
State of California included in a call for an extraordinary session of 
the Legislature of California the provisions contained in this agree- 



10 LA^^DS FOE EDUCATIO^iTAL PURPOSES. 

ment, and thereunder, and on the 24:th day of December, 1911, the 
Legislature of the State of California passed the following act: 

Chapter 21. — An act to authorize the adjustment and settlement of a controversy exist- 
ing between the United States and the State of California, in relation to the grants 
made by Congress to the State of California for the benefit of the public schools, and 
intei'nal improvements, authorizing the conveyance of land by officers of the State for 
the purpose of making such adjustment and settlement, and making an appropriation to 
carry out the provisions hereof. 

[Approved December 24, 1911.] 

Whereas under the terms and provisions of certain acts of Congress of the 
United States 500,000 acres of land were granted to tlie State for internal im- 
provements and the sixteenth and thirty-sixth sections in each township, and 
lands in lieu thereof, vs-ere granted to the State of California for school pur- 
poses; and 

AVhereas it is claimed by the United States that prior to March 1, 1877, there 
were listed to the State of California approximately 16,000 acres of land in 
excess of the amount of land to which the State was justly entitled, also that 
the State has received indemnity for certain sixteenth and thirty-sixth sections 
of land assumed to be within the exterior boundaries of Mexican grants, which 
sixteenth and thirty-sixth sections were subsequently either wholly or partially 
excluded from such grants and subsequently sold by the State, the total area 
being approximately 10,151 acres ; also that the State has received indemnity 
for certain sixteenth and thirty-sixth sections, alleged to be mineral in charac- 
ter, which said school sections the State sold in place, either before or after 
receiving indemnity therefor, the total area being approxima.tely 8,715 acres ; 
also that the State received approximately 2,028 acres in excess of the 500,000- 
acre grant ; and 

Whereas the Department of the Interior has for many years withheld from 
certification the greater part of the lieu land selected by the State, pending a 
settlement of said matters, and there remains to be listed to the State upw^ard 
of 450,000 acres, which, if listed, would be subject to taxation ; now, therefore, 

The people of the State of California do enact as follows: 

Sectiots" 1. There shall be paid to the Federal Government by the State of 
California, acting through the officers hereinafter mentioned, and in the manner 
and upon the terms and conditions hereinafter set forth, the sum of one and 
twenty-five one-hundredths dollars per acre for all excess certifications of in- 
demnity school lands, which occurred prior to March 1, 1877, and for which 
said lands no payment has as yet been made to the United States. 

Sec. 2. The officers of the State of California mentioned in sections 3519 and 
3520 of the Political Code of said State, are hereby authorized, empowered, and 
directed, in the manner in said sections provided, to convey to the United .States 
by patent, or otherwise, such an amoxint of land in sections 16 and 36, situated in 
national forests or other reservations, as will equal in area all selections that 
have been heretofore listed or certified by the Government to the State of Cali- 
fornia, made in lieu of sections 16 and 36, claimed or reported to be mineral in 
character, or embraced in forest or other reservations, and wherein such base 
tracts have been or may be sold or encumbered by the State : Provided, hotvever, 
That no lands shall be patented in any case wherein it shall be found that the 
United States has disposed, by patent or otherwise, of the tract in lieu of which 
indemnity was claimed and granted. 

Sec. 3.' The officers of the State referred to in section 2 hereof are hereby 
authorized and directed to convey, by patent or otherwise, to the United States, 
in addition to the 12.000 acres heretofore granted, an amount of land equal in 
area to any additional excess in certifications occurring since March, 1877. 

The surveyor general of the State of California is hereby authorized and 
empowered to locate and select in the United States land offices, for the benefit 
of persons having certificates of purchase or patents from the State, lands in 
sections 16 and 36, which, under the provisions of the act of Congress approved 
March 1. 1877, and commonly known as the Booth Act, are claimed to be prop- 
erty of the United States, but which said lands have been heretofore sold or en- 
cumbered by the State. The said lands hereby authorized to be selected are 
lands which have been heretofore used or designated by the State of California 
as basis for indemnity selections, and for which the State of California received 
indemnity, but which said lands in said sections 16 and 36 the said State also 
sold or encumbered. For the purpose of making the selections hereby author- 
ized to be made the said surveyor general is hereby authorized and empowered 



LANDS FOE EDUCATIONAL PUEPOSES. 11 

to use and designate any basis or lands mentioned in section 3406a. of the 
Political Code of the State of California, or any other basis which may be 
proper or valid ia malting indemnity selections. 

Sec. 4. For the purpose ©f carrying into effect the terms and provisions of 
this act the surveyor general of the State of California is authorized and di- 
rected to ascertain and determine from the records of his office and the records 
of the Department of the Interior the amount of lands which should be con- 
veyed to the United States and likewise the number of acres of land as in this 
act provided for, which the State has, by the terms of this act, authorized and 
directed payment to be made, and after said facts have been ascertained and 
determine'!, the said officers of said State referred to in sections 2 and 3 hereof 
are hereby authorized and directed to make, execute, and deliver for said State, 
in its naihe and as its act and deed, any and all written agreements, deeds, 
patents, or conveyances necessary to carry out and consummate the terms of 
this act. 

Sec. 5. The sum of $25,000 is hereby appropriated out of any moneys in the 
State treasury not otherwise appropriated for the purpose of carrying out the 
provisions of this act and paying all necessary expenses of the surveyor general 
and attorney general in connection herewith, and the State controller is hereby 
authorized and directed to draw his warrant or warrants in favor of the United 
States, or the proper officers thereof, for such amount as may be payable to said 
United States under the terms hereof, and also to draw his warrant or warrants 
for the necessary expenses of the surveyor general and attorney general in carry- 
ing out the provisions of this act, and the State treasurer is hereby directed to 
pay the same. 

In originally submitting this matter to the Committee on the Pub- 
lic Lands the Department of the Interior on December 13, 1915, 
submitted report thereon to the committee, and, although somewhat 
voluminous, your committee believes that it should be made a part 
of this report to the House, as it contains a full and complete history 
and presentation of the entire subject and a special presentation as 
it relates to each State wherein there are lands involved or affected 
by this legislation. The report is as follows : 

Department of the Interior, 

WasMngton December 13, 1915. 
Hon. Scott Ferris, 

Chairman Committee on Public Lands, House of Representatives. 
My Dear Mr. Ferris: As you are aware, it has been the general practice of 
Congress to grant to the various States two, and in some instances four, sections of 
public lands in place for the support of public schools. The act of February 28, 1891 
(26 Stat., 796), amending sections 2275 and 2276 of the Revised Statutes, has in the 
past been regarded and treated by this department as a general adjustment act, per- 
mitting the States to select other vacant nonmineral public lands in Lieu of losses to 
the grant in place; that with respect to the establishment of national forests and 
other reservations, including within their exterior limits unsurveyed school sections, 
the reservation operated to defeat the grant in place, but entitled the State to lands 
in lieu thereof; and that as to school lands surveyed prior to the establishment of 
such reservations the State might, under the so-called exchange provision of the 
act, surrender its title to such surveyed school sections in exchange for public lands 
of the United States. With respect to the school grant made to the States of Wash- 
ington, Montana, South Dakota, and North Dakota by the act of February 22, 1889 
(25 Stat., 676), the Supreme Court of Washington, in the case of the State v. Whitney, 
held, in substance, that the grant was a present one, applicable to all lands, whether 
surveyed or unsurveyed, and that the act of February 28, 1891, supra, did not operate 
to repeal or limit the operation of the grant to said States under the act of 1889. In 
the case of Hibberd v. Slack (84 Fed. Rep., 571), involving school sections in Cali- 
fornia surveyed prior to their inclusion in a reservation, the court held, in substance, 
that the act of February 28, 1891, supra, does not authorize the State to surrender 
school lands in place surveyed prior to the creation of the reservation in exchange 
for other public lands, this upon the theory that the title to the lands in place, had 
vested in the State, and that the latter was without authority to surrender such title 
for lieu lands. The said decision was followed in the case of the Desert Water, Oil 
& Irrigation Co. v. State of California (138 Pac. Rep., 981), now pending in the Su- 
preme Court of the United States on writ of error. The situation is also complicated, 



12 LAISTDS FOR EDUCATIOIS^AL PURPOSES. 

particularly with respect to those States which were granted school lands in place by 
the act of February 22, 1889, supra, by provisions in the constitutions of the States 
and in the law pro\T.ding that the lands granted shall be disposed of in a specific 
manner and at not less than a specified price. With.iespect to this provision, the 
Supreme Court of Idaho, in Balderston v. Brady (17 Idaho, 567). held that the State 
ofiicials were not authorized to surrender sections in place and take indemnity there- 
for, but could dispose of school sections only in accordance with the constitutional 
provision indicated. Subsequently, after the enactment of a law by the State leg- 
islature authorizing exchanges, the supreme court, in Rogers v. Hawley (19 Idaho, 
751), held that the same might be properly consummated. 

The situation with respect to these grants is, therefore, that the former rulings and 
practices of this department have been questioned or controverted by decisions of 
the State courts, and in one instance by decision of a Federal court, with the result 
that the department has felt it incumbent upon it to suspend all pending applica- 
tions for the exchange of lands in such cases and to refuse to entertain further appli- 
cations therefor. This situation has resulted in delay and hardship to the States 
and to purchasers of Heu lands from the various States and calls for action which 
will enable the United States and the States to adjust and settle these grants. 

I have, therefore, caused to be prepared and herewith transmit a tentative form of 
measure which, in the view of the department, would meet the situation provided 
that appropriate action be had by the several States where necessary to secure on 
their part the necessary authority to meet the terms of the exchange authorized by 
Federal law. 

Section 1 makes applicable to States, ha\T-ng grants of school lands under certain 
acts therein described, the provisions of the act of Congress approved February 28, 
1891, confirms selections heretofore made and approved thereunder, and proposes to 
authorize the approval of all pending unapproved selections heretofore made, if other- 
wise regular, and made for lands subject to selection at date of approval. 

Section 2 proposes a plan of adjustment of the school grants in so far as they fall 
within the exterior limits of national forests, the object being to adjust the grant in a 
way which will be mutually beneficial to the United States and the States. The 
plan proposed is designed (1) to enable the several States to consolidate their lands 
in a solid block, so that they may be handled on a profitable and businesslike basis, 
and to permit the States to come into immediate possession and use of the full acreage 
of school lands within national forests to which they might be eventually entitled. 
(2) It will remedy the embarrassing situation which now exists of having school lands 
granted in place." two or four sections, being scattered throughout national forests in 
such a way as to embarrass the Federal Government in the use and administration of 
national-forest lands, the State being at the same time not in a position to make bene- 
ficial use of the isolated and scattered areas. In substance, it permits the State and 
the United States, acting through the Departments of Agriculture and Interior, to 
mutually agree for the surrender of the scattered school sections within national 
forests and the selection in lieu thereof, within the boundaries of any national forest 
or forests within the State, of a solid block or blocks of land of approximately equal 
value, and the patenting thereof to the States. The second pro\iso to the section is 
designed to permit the consummation of an agreement made between the Department 
of Agriculture and the State of South Dakota of the character described, which agree- 
ment was entered into upon the belief that existing law permitted such an arrange- 
ment. It may be stated in this connection that the States of Idaho, Montana, and 
Washington have indicated a desire to make such exchanges as are proposed in sec- 
tion 2 of this measure, and examinations of lands have been made, or are now in 
progress, to that end. Congress having in the acts of March 4. 1913, and March 4, 1915, 
appropriated money to enable the Forestry Service of the Department of Agriculture 
to make examinations or investigations in the States of Montana and Washington. 
Undoubtedly, some of the other public-land States will in the future desire to enter 
into similar arrangements. 

Section 3 of the bill is confirmatory and is designed to permit the approval and 
passing of title to the States of indemnity selections heretofore made in lieu of surveyed 
school lands in forests or other permanent reservations. It is particularly important 
to the States which have made such lieu selections and to those who have piu'chased 
the selected land from the States in anticipation of the consmnmation of the exchange. 
The reason for inserting in the proviso to section 3 the clause respecting an agreement 
between the Secretary of the Interior and the State of California is briefly as follows: 
School sections in place approximating in area 7,000 acres were believed to be 
within the limits of certain private land grants in the State of California, and on the 
basis thereof the State seciued lieu lands. Subsequently, upon final survey of the 

f)rivate grants, it was found that the sections in place in fact lay outside of the grant 
imits, and the State, assuming that it owned the same, proceeded to dispose of the 



LANDS FOR EDUCATIONAL PUEPOSES. 13 

same to private individuals. In adjusting the school grant to the State of California 
this fact was disclosed and the State, in order to protect the purchasers of the land 
in place and to make reparation for the unauthorized sale of the sections in place, 
which in fact were not State lands, entered into an agreement with the Secretary of 
the Interior in 1912 to select the said sections in place, aggregating, as stated, about 
7,000 acres in lieu of school sections within national forests. The entire matter of 
adjustments between the State and the United States has been ratified by the Legis- 
latiu-e of the State of California, and should this measure become a law it is important 
that in order to entirely straighten out the matter the clause just described be included. 
The situation is limited to the area described, and is present nowhere else. 

Section 4 provides that sections 1 and 2 of this measure shall be applicable only 
where the States shall have by constitutional legislative enactment assented to the 
terms and conditions of the act of February 28, 1891, supra, this provision being 
designed to secure the necessary constitutional action by those States where.it may 
be found they are at present without constitutional authority to consummate the 
exchanges authorized to be made under sections 1 and 2 of this bill. 

The existing situation has been the subject of extended investigation by this depart' 
ment, and I inclose a report submitted by the General Land Office setting out in 
detail the history of the school grants and the operations thereunder. The legislation 
proposed is urgent and important, both from the viewpoint of the National Govern- 
ment and of the States interested, and I earnestly hope that some such legislation 
may be had in the near future. Should the tentative measure herewith submitted 
meet with your approval, I will be glad if you will introduce same. 

Very truly, yours, Andrieus A. Jones, 

First Assistant Secretary. 



REPORT OF THE COMMISSIONER OF THE GENERAL LAND OFFICE 
ON ADJUSTMENT OF GRANTS IN AID OF PUBLIC SCHOOLS. 

Department op the Interior, 

General Land Office, 

Washington, D. C. 
The Secretary op the Interior. 

Sir: In accordance with your request of December 3, 1914, I have the honor to 
submit herewith a report with respect to the pending adjustment of the several grants 
in aid of public schools, especially as to claims for indemnity. 

The specific information called for in your request covers so wide a field of investi- 
gation that I have deemed it advisable to indicate the order in which the several 
features will be presented: 

1. Call for report. 

2. Character of the school grant, as defined by the courts. 

3. General legislation regulating indemnity. 

Decisions of the courts and department thereon. 

4. Grants to the several States: 

(a) State constitutional provisions. 

(b) State legislation. 

(c) Decisions of the State and Federal courts construing said grants — 

California. 

Oregon. 

Nevada. 

Colorado. 

Washington. 

Montana. 

North Dakota. 

South Dakota. 

Idaho. 

Wyoming. 

Utah. 

New Mexico. 

Arizona. 

5. Proposed legislation: 

(a) Amendatory act of 1891. 
(&) Mineral lands. 

6. Tabulated statement of present status of adjustment as to lands within national 

forests and other reservations. 
Note. — For exception of mineral land from grants, see Nevada, Utah, and New 
Mexico. 



14 LANDS FOE EDUCATIOlSrAL PURPOSES. 

1. CALL FOR REPORT. 

Department op the Interior, 

December 3, 1914. 
The Commissioner of the General Land Office. 

Sir: The question of adjusting the school grants to the several public-land States, 
and particularly the matter of indemnity selections for losses by reason of creation of 
national forests and other reservations, is, as you are aware, an exceedingly embar- 
rassing and uncertain matter, particularly in view of the peculiar language of the 
grants to certain of the States, of the peculiar constitutional provisions or lack of con- 
stitutional provisions in certain of the States governing exchanges, and of the fact 
that numerous forest and other reservations have been created since the admission of 
the several States into the Union. 

Various bills have been introduced into Congress and tentative drafts of reports 
thereupon submitted for the department's consideration, but none seem to cover the 
field, nor to afford an entirely satisfactory solution of all problems. It occurs to me 
that we should fu'st ascertain, as nearly as possible, the exact legal and constitutional 
difficulties which confront us in this particular, the status of the grants to the several 
States, particularly with reference to existing reservations or withdrawals, and then 
draft a tentative measure meeting and curing these difficulties and deficiencies. 

In connection with House joint resolution 266 you transmitted a tentative draft of 
report, which report discusses generally the laws and decisions, and gives approxi- 
mately the acreage of approved and unapproved school indemnity selections made 
upon the basis of surveyed and unsurveyed school sections within national forests 
and national parks. There is no statement, however, of the approximate total of 
school sections within the limits of national forests, national parks, Indian or other 
reservations in each of the several States, or information as to when the several reserva- 
tions or withdrawals were made. Neither is there a specific statement as to the exact 
difficulties, constitutional or legal, in the way of effecting an adjustment in each 
State. 

It occurs to me, therefore, as a basis for further intelligent consideration of the 
matter, it will be necessary for you to compile from your records a memorandum of 
statement, which shall first take up, State by State, the exact legal situation under 
both Federal and State laws, with respect to school sections and indemnity for losses 
thereof. In each case a statement should be made of the decisions of the courts of 
that State or of other States which bear upon the right or absence of right of the State 
or of the Federal Government to consummate exchanges. The difference in the terms 
of the several enabling acts and of the constitutions of the States renders it important 
that the peculiar conditions and difficulties applicable to each State be given sepa- 
rately. I would also like a statement of the approximate total acreage of granted 
school sections within the limits of national forests, national parks, national monu- 
ments, Executive order Indian reservations, etc., in addition to the rnore specific data 
given in the proposed report on House joint resolution 266. This data, together 
with the data already collated by you, showing the approved and pending indemnity 
selections, should enable us to ascertain the amount of land which might be sought to 
be made the subject of future exchange. I would also like to be advised, approxi- 
mately, of the acreage of indemnity school selections offered and pending and which 
selected land is now included within withdrawals or reservations for water-power sites 
and other withdrawals made under the provisions of the act of June 25, 1910 (36 Stat., 
847); also approximate acreage of indemnity school selections pending for lands which 
have, since date of proffer of the selection, been included within existing national 
forests, parks, monuments, or Executive order Indian reservations. 

The matters involved are so important to the Government, the several States, and 
incidentally to individuals, and the necessity for comprehensive and decisive legisla- 
tion curing difficulties and doubts so evident, that I believe the labor involved in 
securing the data above indicated, and any other data which you may regard mate- 
rial, is fully warranted. This memorandum or tabulation need not be prepared for 
the States whose grants have been practically adjusted and within whose lirnits no 
national forests or parks exist, but should include those public-land States with un- 
adjusted grants, within whose limits exist national parks, national forests, Executive 
order Indian reservations, and national monuments. 

Please refer in your reply to Miscellaneous Docket No. 29583. 
Respectfully, 

A. A. Jones, 
First Assistant Secretary. 



LANDS FOE EDUCATIONAL PURPOSES. 15 

2. CHARACTER OF SCHOOL GRANT, AS DEFINED BY THE DECISIONS 

OF THE COURT. 

Heydenfeldt v. Daney Gold & Silver Mining Co. (93 U. S., 637): 
"The validity of the patent from the State under which the plaintiff claims title 
rests on the assumption that sections 16 and 36, whether surveyed or unsurveyed, 
and whether containing minerals or not, were granted to Nevada for the support of 
common schools by the seventh section of the enabling act approved March 21, 1864 
(13 Stat., 32), which is as follows: 'That sections numbered 16 and 36 in every town- 
ship, and where such sections have been sold or otherwise disposed of by any act of 
Congress, other lands equivalent thereto, in legal subdivisions of not less than one 
quarter section, and as contiguous as may be, shall be and are hereby, granted to said 
State for the support of common schools.' 

"This assumption is not admitted by the United States, who, in conformity with 
the act of Congress of July 26, 1866 (14 id., 251), issued to the defendant a patent to 
the land in controversy, bearing date March 2, 1874. 'N'^Tiich is the better title is 
the point for decision. As it has been the settled policy of the Government to pro- 
mote the development of the mining resources of the country, and as mining is the 
chief industry in Nevada, the question is of great interest to laer people. 

******* 

"Congress, at the time, was desirous that the people of the Territory of Nevada 
should form a State Government and come into the Union. The terms of admission 
were proposed, and, as was customary in previous enabling acts, the particular sec- 
tions of the public lands to be donated to the new State for the use of common schools 
were specified. These sections had not been surveyed, nor had Congress then made, 
or authorized to be made, any disposition of the national domain within that Ter- 
ritory. 

"But this condition of things did not deter Congress from making the necessary 
provision to place, in this respect, Nevada on an equal footing with States then recently 
admitted. Her people were not interested in getting the identical sections 16 and 
36 in every township. Indeed, it could not be known until after a survey where they 
would fall, and a grant of quantity put her in as good a condition as the other States 
which had received the benefit of this bounty. A grant operating at once and 
attaching prior to the surveys by the United States would deprive Congress of the 
power of disposing of any part of the lands in Nevada until they were segregated 
from those granted. In the meantime, further improvements would be arrested, 
and the persons who prior to the surveys had occupied and improved the country 
would lose their possessions and labor in case it turned out that they had settled 
upon the specified sections. Congress was fully advised of the condition of Nevada; 
of the evils which such a measure would entail iipon her, and of all antecedent legis- 
lation upon the subject of the public lands within her bounds. In the light of this 
information, and surrounded by these circumstances, Congress made the grant in 
question. It is ambiguous; for its different parts can not be reconciled if the words 
used to receive their usual meaning. Schulenberg v. Harriman (21 Wall., 44), 
establishes the rule that 'unless there are other clauses in a statute restraining the 
operation of words of present grant', these must be taken in their natural sense.' We 
do not seek to depart from this sound rule; but, in this instance, words of qualification 
restrict the operation of those of present grant. Literally construed, they refer to 
past transactions; but evidently they were not employed in this sense, for no lands 
in Nevada had been sold or disposed of by any act of Congress. There was no occasion 
of making provision for substituted lands if the grant took effect absolutely on the 
admission of the State into the Union, and the title to the lands then vested in the 
State. Congress can not be supposed to have intended a vain thing, and yet it is 
quite certain that the language of the qualification was intended to protect the State 
against a loss that might happen through the action of Congress in selling or disposing 
of the pubUc domain. It could not, as we have seen, apply to past sales or disposi- 
tions, and, to have any effect at all, must be held to apply to the future. 

"This interpretation, although seemingly contrary to the letter of the statute, is 
really within its reason and spirit. It accords with a wise public policy, gives to 
Nevada all she could reasonably ask, and acquits Congress of passing a law which in 
its effects would be unjust to the people of the Territory. Besides, no other con- 
struction is consistent with the statute as a whole, and answers the evident intention 
of its makers to grant to the State in praesenti a quantity of lands equal in amount to 
the sixteenth and thirty-sixth sections in each township. Until the status of the lands 
was fixed by a survey, and they were capable of identification, Congress reserved 
absolute power over them; and if in exercising it the whole or any part of a sixteenth 



16 LANDS FOR EDUCATIONAL PUEPOSES. j 

or thirty-sixth section had been disposed of, the State was to be compensated by other 
lands equal in quantity, and as near as may be in quality." 

Water & Mining Co. v. Bugbey (96 U. S., 167): 

''In Sherman v. Buick (93 U. S., 209) it was decided that the State of California took 
no title to sections 16 and 36, under the act of 1853, as against an actual settler before the 
survey, claiming the benefit of the preemption laws, who perfected his claim by a 
patent from the United States. In such a case the State must look for its indemnity 
to the provisions of section 7 of the act. As against all the world, except the pre- 
emption settler, the title of the United States passed to the State upon the completion 
of the surveys; and if the settler failed to assert his claim, or to make it good, the rights 
of the State became absolute. The language of the court is (p. 214): 

"These things (settlement and Improvement under the law) being found to exis:j 
when the survey ascertained their location on a school section, the claim of the State 
to that particular piece of land was at an end; and it being shown in the proper mode 
to the proper officer of the United States, the right of the State to the land was gone, 
and in lieu of it she had acquired the right to select other land, agreeably to the act of 
1826.' 

"In that case, the controversy was between the settler, who had perfected his title 
from the United States, and a purchaser from the State. Here the company does not 
claim under the settler's title, but seeks by means of it to defeat that of the State, and 
thus leave the land in a condition to be operated upon by the act of July 26. The 
settler, however, was under no obligation to assert his claim, and he having abandoned 
it, the title of the State became aiasolute as of May 19, 1866, when the surveys were 
completed. The case stands, therefore, as if at that date the United States had parted 
with all interest in and control over the property." 

Minnesota v. Hitchcock (185 U. S., 392): 

•'Again, the language of the section does not imply a grant in praesenti. It is 'shall 
be granted.' Doubtless under that promise whenever lands became public lands they 
came within the scope of the grant. As said in Beecher v. Wetherby (95 U. S., 517, 
523), with reference to a similar clause in the act for the admission of Wisconsin into the 
Union : 

"'It was, therefore, an unalterable condition of the admission, obligatory upon the 
United States, that section 16 in every township of the public lands in the State, which 
had not been sold or otherwise disposed of, should be granted to the State for the use of 
schools. It matters not whether the words of the compact be considered as merely 
promissory on the part of the United States, and constituting only a pledge of a grant 
in future, or as operating to transfer the title to the State upon her acceptance of the 
propositions as soon as the sections could be afterwards identified by the public sur- 
veys. In either case, the lands which might be embraced within those sections were 
appropriated to the State. They were withdrawn from any other disposition, and set 
apart from the public domain, so that no subsequent law authorizing a sale of it could 
be construed to embrace them, although they were not specially excepted.' " 

State of Alabama v. Schmidt (232 U. S., 168): 

"The gift to the State is absolute, although, no doubt, as said in Cooper v. Roberts 
(18 How., 173), 'There is a sacred obligation imposed on its public faith.' But that 
obligation is honorary, like the one discussed in Conley v. Ballinger (216 U. S., 84), and 
even in honorwoukl not be broken by a sale and substitution of the fund, as in that 
case; a course, we behove, that has not heen uncommon among the States. See, 
further, Stuart v. Easton (170 U. S., 383)." 

The grant, then, in aid of the public schools, as defined by the decisions of the 
CQurts, whether the words of grant are "hereby granted," "shall be, and is hereby 
granted," or "shall be granted," is a present grant, taking effect as to particular tracts 
of land when identified by survey. 

3. GENERAL LEGISLATION. 

By the act of May 20, 1826 (4 Stat., 179), Congress appropriated lands for the support 
of schools, in certain townships, and fractional townships, not before provided for, 
and fixed a rule for determining the amount of the grant in the case of fractional 
townships. Section 2 of the act provided: 

"That the aforesaid tracts of land shall be selected by the Secretary of the Treasury 
out of any unappropriated public land within the land district where the township 
for which any tract is selected may be situated." 

This is not an indemnity set, but provides for selections in cases where school lands 
had not theretofore been appropriated. 

The act of February 26, 1859 (11 Stat., 385) grants indemnity for school lands lost 
by reason of settlements prior to survey, also for deficiencies by reason of the fractional 



LANDS FOR EDUCATIONAL PUEPOSES. 17 

character of the granted sections, or where one or both are wanting by reason of the 
township being fractional, or from any natural cause whatever. It is further provided 
that the selections and appropriations thus authorized should be taken in accordance 
with the principles of adjustment found in the act of May 20, 1826 (4 Stat., 179). 

Sections 2275 and 2276, Revised Statutes, preserve the principal features of the fore- 
going acts, making due provision for indemnity and adjustment in accordance there- 
with. 

Section 2275, Revised Statutes, was amended by act of February 28, 1891 (26 Stat., 
796), to read as follows: 

"Where settlements, with a view to preemption or homestead, have been or shall 
hereafter be made before the survey .of the lands in the field, which are found to have 
been made on sections sixteen or thirty-six, those sections shall be subject to the 
claims of such settlers; and if such sections, or either of them, have been or shall be 
granted, reserved, or pledged for the use of schools or colleges in the State or Territory 
in which they lie, other lands of equal acreage are hereby appropriated and granted, 
and may be selected by said State or Territory, in lieu of such as may be thus taken 
by preemption or homestead settlers. And other lands of equal acreage are also 
hereby appropriated and granted, and may be selected by said State or Territory, 
where sections sixteen or thirty-six are mineral land, or are included within any 
Indian, military, or other reservation, or are otherwise disposed of by the United 
States: Provided, Where any State is entitled to said sections sixteen and thirty-six, 
or where said sections are reserved to any Territory, notwithstanding the same may 
be mineral land or embraced within a military, Indian, or other reservation, the selec- 
tion of such lands in lieu thereof by said State or Territory shall be a waiver of its 
right to said sections. And other lands of equal acreage are also hereby appropriated 
and granted, and may be selected by said State or Territory, to compensate deficiencies 
for school purposes where sections sixteen or thirty-six are fractional in quantity, or 
where one or both are wanting by reason of the township being fractional, or from 
any natural cause whatever. And it shall be the duty of the Secretary of the Interior, 
without awaiting the extension of the public surveys, to ascertain and determine, 
by protraction or otherwise, the number of townships that will be included within 
such Indian, military, or other reservations, and thereupon the State or Territory 
shall be entitled to select indemnity lands to the extent of two sections for each of 
said townships in lieu of sections sixteen and thirty-six therein; but such selections 
may not be made within the boundaries of said reservations : Provided, however. That 
nothing herein contained shall prevent any State or Territory from awaiting the 
extinguishment of any such military, Indian, or other reservation and the restoration 
of the lands therein embraced to the public domain and then taking the sections 
sixteen and thirty-six in place therein ; but nothing in this proviso shall be construed 
as conferring any right not now existing." 

Section 2276, Revised Statutes, was also amended by said act to read as follows: 

"That the lands appropriated by the preceding section shall be selected from any 
unappropriated, siu-veyed public lands, not mineral in character, within the State or 
Territory where such losses or deficiencies of school sections occur; and where the 
selections are to compensate for deficiencies of school lands in fractional township- 
such selections shall be made in accordance with the following principles of adjusts 
ment, to wit: For each township or fractional township containing a greater quantity 
of land than three-quarters of an entire township, one section; for a fractional township 
containing a greater quantity of land than one-half, and not more than three-quarters 
of a township, three-quarters of a section; for a fractional township containing a greater 
quantity of land than one-quarter, and not more than one-half of a township, one-half 
section; and for a fractional township containing a greater quantity of land than one 
entire section, and not more than one-quarter of a township, one quarter section of 
land : Provided, That the States or Territories which are, or shall be, entitled to both 
the sixteenth and thirty-sixth sections in place, shall have the right to select double 
the amounts named to compensate for deficiencies of school land in fractional town- 
ships." 

The provisions of the act of February 28, 1891, have been specifically extended to 
Utah, New Mexico, and Arizona. See acts of May 3, 1902 (32 Stat., 188), March 16, 
1908 (35 Stat., 44), and June 20, 1910 (36 Stat., 557). 

Departmental Decisions, 

As to the foregoing legislation, the Land Department has held that the acts of May 
20, 1826, and of February 26, 1859, are of general applicability to all the States in the 
adjustment of the school grant. (5 L. D., 545; 13 L. D., 378.) 

H. Kept. 779, 64-1 2 



18 LANDS FOE EDUCATIONAL PURPOSES. 

These statutes, as heretofore noted, form the basis for sections 2275 and 2276, as 
appearing in the Revised Statutes, and constituted the general law of adjustment of 
the school grant until the amendatory act of February 28, 1891, since which time the 
department has held in numerous cases that said sections, as amended, are applicable 
to all the public land States and operate as a repeal of all special laws theretofore 
enacted, so far as in conflict therewith (12 L. D., 400; 24 L. D., 12,106; 21 L. D., 220; 
23 L. D., 423); or, as stated in a later decision, the act of February 28, 1891, amending 
sections 2275 and 2276, Revised Statutes, is a general act establishing a uniform rule 
with respect to the adjustment of school land grants to the several States, affording 
each an equal right of indemnity, superseding, so far as is in conflict, all other laws 
bearing on the same subject. (36 L. D., 89.) 

Court Decisions. 

The scope of the act of February 28, 1891 (26 Stat., 796), was under consideration in 
the case of Johnston v. Morris, decided February 3, 1896, in the Circuit Court of Ap- 
peals, Ninth Circuit (72 Fed. Rep., 890), wherein the court said: 

"The contention that the act of February 28, 1891 (26 Stat., 796), amending section 
2275 of the Revised Statutes, does not apply to California, is supported by a decision 
of the Secretary of the Interior, dated July 6, 1892 (State of California, 15 Land Dec. 
Dep. Int., 10). The Secretary had before him an appeal, taken by the State of Cali- 
fornia, from a decision of the General Land Office rejecting certain applications by the 
State to select indemnity school lands upon the basis of townships made fractional by 
reason of portions thereof being swamp lands. It was contended on the part of the 
State, amon" other things, that as the swamp lands situated within the State had 
been granted to the State by the act of September 28, 1850, those lands had been 
'otherwise disposed of by the United States,' and that the State was therefore entitled 
to indemnity selection for sections 16 and 36 of such lands lost from the school grantby 
reason of being swamp lands. This contention was based upon the following provision 
of section 2275 of the Revised Statutes, as amended by the act of February 28, 1891: 

'"And other lands of equal acreage are also hereby appropriated and granted, and 
may be selected by said State or Territory where sections sixteen or thirty-six are 
mineral land, or are included within any Indian, military, or other reservation, or are 
otherwise disposed of by the United States.' 

"The Secretary held that California took her school grant under section 6 of the act 
of March 3, 1853, and section 6 of the act of July 23, 1866; and that the indemnity 
provision of section 2275 of the Revised Statutes, as amended, was not applicable to 
selections made by the State in lieu of the swamp land lost from the school land grant, 
on the ground that it would be giving to the State an indemnity for a class of lands 
already donated to the State; and that the principle upon which indemnity is given 
to the State is for a loss, and not for that which the State has aheady received. This 
is a clear and forcible statement of the reason why the State is not entitled to make in- 
demnity selections for' school lands which it had already received as swamp_ lands, 
but this reason does not apply to losses from the school grant by reason of sections 16 
and 36 being mineral lands. Where such sections are found to be mineral lands, 
here is an absolute loss of such lands to the State, and, to that extent, a clear and un- 
conditional diminution of the school land grant. The policy of Congress has been, 
clearly, in the direction of an enlargement of the grant to the State, rather than a 
diminution. When, therefore, the Secretaiy went beyond the question he had before 
him, relating to swamp lands, and determined that section 2275, as amended by the act 
of February 28, 1891, did not give any additional indemnity rights to the States, and 
that such provisions merely declared the existing laws, he certainly gave to the amend- 
ment a limitation not warranted by the legitimate conclusion to be drawn from his 
own argument; and it appears to be too narrow an interpretation to hold that the amend- 
ment only provided an additional right in the adjustment of the grant to make 
indemnity selections in advance of the surveys, and from any unappropriated public 
lands in the State or Territory where the loss occurs, instead of from lands most con- 
tiguous to the same. A more satisfactory interpretation of the statute as amended 
is to be found in a prior decision of the Secretary of the Interior, dated April 22, 1891, 
where it was held that it was intended by the act of February 28, 1891, to provide a 
uniform rule for the selection of indemnity of lands applicable to all the States and 
Territories having grants of school lands. This decision is based, mainly, upon the 
proceedings in Congress, and, particularly, on the report of the Committee on Public 
Lands of the House of Representatives, reciting and adopting a report previously 
made to the Senate. This report contained the following statement: 

" 'In the administration of the law, it has been found by the Land Department 
that the statute does not meet a variety of conditions, whereby the States and Terri- 



LANDS FOR EDUCATIONAL PURPOSES. 19 

tories suffer loss of these sections, without adequate provision for indemnity selection 
in lieu thereof. Special laws have been enacted in a few instances to cover, in part, 
these defects with respect to particular States or Territories; but, as the school grant 
is intended to have equal operation and equal benefit in all the public-land States 
and Territories, it is obvious the general law should meet the situation, and par- 
tiality or favor be thereby excluded. * * * The bill as now framed will cure all 
inequalities in legislation, place the States and Territories in a position where the 
school grant can be applied to good lands, and largest measure of benefit to the school 
funds be thereby secured.' (22 Cong. Rec, p. 3632.) 

"In construing a statute, aid may be derived from attention to the state of things 
as it appeared to the legislature when the statute was enacted. (U. S. v. Union Pac. 
R. Co., 91 U. S., 72; Piatt v. Raihoad Co., 99 U. S., 48; Smith v. Townsend, 148 
U. S., 490, 13 Sup. Ct., 634.) 

"From the statement of the committee, it appears very clearly that the statute 
Avas intended to be general in its terms, and applicable alike to all the States and Ter- 
ritories receiving grants of school lands; and such appears to be the view now held 
by the Secretary of the Interior, who, under date of September 27, 1895, so inter- 
preted the statute in a decision relating to a settlement before survey on school lands 
in the State of Nebraska. (21 Land Dec, Dep. Int., 220.)" 

The possible effect to be given theact of February 28, 1891 (26 Stat., 796), upon 
prior school grants, is referred to in Minnesota v. Hitchcock (185 U. S., 400): 

"In other words, the act of admission with its clause in respect to school lands 
was not a promise by Congress that under all circumstances, either then or in the future, 
these specific school sections were or should become the property of the State. The 
possibility of other disposition was contemplated, the right of Congress to make it 
was recognized, and provision made for a selection of other lands in lieu thereof. 
In this connection may also be noticed the act of February 28, 1891, although passed 
after the approval of the agreement for the cession of these lands by the Indians. 
This act in terms authorized the selection of other lands 'where sections sixteen or 
thirty-six are mineral land, or are included within any Indian, military, or other 
reservation, or are otherwise disposed of by the United States.' " 

Exchange Provision of the Act op February 28, 1891 — Decisions of the 

Department. 

The first decisions rendered by the department after the passage of this act, held 
that it provided for an "exchange of title" between the State and the United States, 
as well as indemnity in case of a State loss. (Henry C. King, Mar. 8, 1892, 14 L. D., 
232; Gregg v. Colorado, Aug. 5, 1892, 15 L. D., 151; McNamara v. State of California, 
Sept. 21, 1893, 17 L. D., 296.) 

Later the department adopted a different view. (17 L. D., 576, Dec. 19, 1893; 
State of California, 19 L. D., 585, Dec. 27, 1894.) 

Still later, January 8, 1897 (Rice v. California, 24 L. D., 14), the earlier doctrine 
was again announced, while yet later, January 30, 1899 (28 L. D., 57), this view was 
again adopted, which has since been followed, so far as reported cases go. (Dunn v. 
State of California, 30 L. D., 608; Opinion Jan. 26, 1901, 30 L. D., 438; State'of Cali- 
fornia, id., 484; Territory of New Mexico, 29 L. D., 364; id., 399; Territory of New 
Mexico, 34 L. D., 599; State of California, 34 L. D., 613.) 

Under these rulings a large number of selections, based upon the principle of ex- 
change, were made and carried to certification, wherein were designated as bases 
sections 16 and 36 in forest reservations that were established subsequent to the public 
survey. 

This construction of the act of 1891 has been the subject of two judicial decisions 
in which the view of the department did not meet with approval. Both of these 
cases arose in connection with the adjustment of the California grant and will be 
considered in connection therewith. 

4. GRANTS TO THE SEVERAL STATES. 

State of California. 

The State was admitted to the Union by act of "September 9, 1850 (St. Sat., 452). 

The grant of school lands to California was made by act of March 3, 1853 (10 Stat. 
244), section 6 of which provides: 

"That all the public lands in the State of California, whether surveyed or un- 
surveyed, with the exception of sections sixteen and thirty-six, which shall be, and 
hereby are, granted to the State for the purposes of public schools in each township 



20 LAiSTDS FOR EDUCATIONAL PUEPOSES. 

* * * shall be subject to the preemption laws of fourth September, eighteen 
hundred and forty-one." 

And section 7: 

"That where any settliement, by the erection of a dwelling house or the cultivation 
of any portion of the land, shall be made upon the sixteenth and thirty-sixth sections, 
before the same shall be surveyed, or where such sections may be reserved for public 
uses or taken by private claims, other lands shall be selected by the proper authori- 
ties of the State in lieu thereof, agreeably to the provisions of the act of Congress 
approved on the twentieth of May, eighteen hundred and twenty-six, entitled 'An 
act to appropriate lands for the support of schools in certain townships and fractional 
townships not before provided for,' and which shall be subject to approval by the 
Secretary of the Interior." 

By section 1, act of July 23, 1866 (14 Stat., 218), all selections made in part satisfac- 
tion of any grant made to the State by any act of Congress and sold to purchasers in 
good faith are confirmed ; and by section 6 further provision is made for indemnity in 
cases of certain specified losses as settlements before survey, reservations, Mexican 
grants, other private claims. 

By the act of March 1, 1877 (19 Stat., 267), the confirmation of certain selections 
was declared and a scheme for the adjustment of certain invalid selections as follows: 

"That the title to the lands certified to the State of California, known as indemnity 
school selections, which lands were selected in lieu of sixteenth and thirty-sixth 
sections, lying within Mexican grants, of which grants the final survey had not been 
made at the date of such selection by said State, is hereby confirmed to said State in 
lieu of the sixteenth and thirty-sixth sections, for which the selections were made. 

"Sec. 2. That where indemnity school selections have been made and certified to 
said State, and said selection shall fail by reason of the land in Lieu of which they were 
taken not being included within such final survey of a Mexican grant, or are otherwise 
defective or invalid, the same are hereby confirmed, and the sixteenth or thirty-sixth 
section in lieu of which the selection was made shall, upon being excluded from such 
final survey, be disposed of as other public lands of the United States: Provided, That 
if there be mo such sixteenth of thirty -sixth section, and the land certified therefor 
shall be held by an innocent purchaser for a valuable consideration, such purchaser 
shall be allowed to purchase the same at one dollar and twenty-five cents per acre, 
not to exceed three hundred and twenty acres for any one person: Provided, That if 
such person shall neglect or refuse, after knowledge of such facts, to fm-nish such 
proof and make payment for such land it shall be subject to the general land laws of 
the United States." 

The provision in the body of section 2, in effect, operates as an "exchange of title " 
between the State and the United States. It was so treated in the case of Durand v. 
Martin (120 U. S., 366): 

"The selection was confirmed and the United States took in lieu of the selected 
lands that which the State would have been entitled to but for the indemnity it had 
claimed and got. In its effect this was an exchange of land between the United 
States and the State. 

STATE CONSTITUTION. 

No limitation is found in the constitution of the State of CaUfornia upon the price for 
which school lands shall be sold, or direction given as to the manner of such sale. 

STATE LEGISLATION. 

By section 3398 of the Political Code of 1909, the surveyor general is declared the 
general agent of the State for the location in the United States land offices "of the 
lands desired to be selected and located in lieu of the sixteenth and thirty-sixth 
sections granted to the State for the use of the public schools, and in lieu of any and 
all losses sustained by the State to its school grants, whenever he is authorized by 
law to make such location or locations or whenever for any reason he is authorized 
to select lands in lieu of grants made to the State." 
This section as amended April 21, 1913 (Stat. 1913, p. 47) now reads as follows: 
"Sec. 3398. The surveyor general is the general agent of the State for the location 
in the United States land offices of the lands desired to be selected and located in 
lieu of the sixteenth and thirty-sixth section granted to the State for the use of the 
public schools, and in lieu of any and all losses sustained by the State to its school 
grant, whenever he is authorized by law to make such location or locations, or when- 
ever for any reason he is authorized to select lands in lieu of grants made to 
the State; but no such selection or reselection, designation or redesignation or 
amended selection shall hereafter in any manner be made, except upon the sur- 



LANDS FOR EDUCATIONAL PURPOSES. 21 

render to the surveyor general, as in this article provided, of a certificate of indemnity 
or scrip. The surveyor general shall not perfect or amend or correct any selection, 
reselection, amended selection, designation, or redesignation made on or before 
March 24, 1909, or take any action whatever in relation thereto or thereon, unless 
the request therefor is accompanied by certificates of indemnity or scrip equal in acre- 
age to the selected lands, or the portion of such selection desired to be corrected, or 
amended or designated or redesignated, and also, unless the said selection, reselec- 
tion, amendfed selection, designation, or redesignation was duly received by the 
register or receiver of the local United States land ofiice, and given a register and 
receiver's number and duly forwarded to the General Land Ofiice at Washington, 
District of Columbia, and became and now is a part of the records of such General 
Land Office at Washington, District of Columbia. No selection of any land for which 
a certificate of purchase is outstanding shall be made by the surveyor general until the 
certificate of purchase issued therefor shall have been surrendered. Nothing herein 
contained shall be held or construed to mean that prior to the passage hereof the sur- 
veyor general was authorized to perfect, or amend or correct any selection, reselec- 
tion, amended selection, designation, or redesignation, except upon the surrender 
to the surveyor general of a certificate of indemnity or scrip." (Amendment approved 
Apr. 21, 1913; Stat. 1913, p. 47.) 

The Thompson Act of March 24, 1909, was enacted to meet conditions following 
the decision of the Federal court in Hibbard v. Slack (84 Fed. Rep., 571), wherein 
the court held in subtance, that the act of February 28, 1891, does not authorize 
any exchange of lands between the Federal and State Governments, but only the 
indemnification of the State for the loss of lands to which it was entitled; and further, 
that the act does not give to the State the right to select other lands of equal acreage 
with the school sections where the latter are included within the exterior boundaries 
of a forest reservation subsequent to the survey in the field and the title thereto has 
thus become vested in the States. 

Section 3406-A: 

"All sixteenth and thirty-sixth sections situated within the exterior boundaries of 
a permanent reservation, and also all losses sustained by the State to its school grants 
shall be and constitute valid bases for indemnity selections as contemplated by this 
article and by law, but said base shall only be available when sold and indemnity 
certificates or scrip issued therefor, and the surveyor general is authorized and empow- 
ered to forward to the United States land offices selections based thereon and where 
based upon surveyed school sections included within the exterior boundaries of 
permanent reservations, if the lands applied for are finally listed to the State in lieu 
of such surveyed school sections constituting such bases, then, and in that event, 
the title of the State to such bases shall vest in the United States without further act 
on the part of the State, and the title of the State to such bases shall be deemed to have 
been conveyed to the United States as of the date of such listing. All selections here- 
tofore made by the surveyor general and which are now pending before the Land 
Department of the United States based upon surveyed school sections situated within 
the exterior boundaries of a permanent reservation shall be, if accepted by the United 
States Land Department, deemed to be valid bases, and, upon the listing of such 
lands the title of the State to such surveyed school sections shall pass to and vest in 
the United States. * * * 

Section 3408-B : 

"That all sixteenth and thirty-sixth sections, both surveyed and unsurveyed, 
wliich may be now or may hereafter be included within the exterior boundaries of a 
national reservation, or of a reserve, or within the exterior boundary of lands with- 
drawn from public entry, shall be and are hereby withheld from sale by the State, 
and the same shall hereafter be used only as bases for indemnity selections as in this 
article provided. * * * And the surveyor general is prohibited from receiving 
or filing any application for any lands in place within any such reservation or the 
exterior boundaries thereof after the correction thereof or after such lands have been 
withdrawn from public entry, and he is likewise prohibited from designating or 
using any base or bases which may now or which may hereafter exist for indemnity 
selection or selections except as herein provided ; and if any applications shall be filed 
contrary to the provisions hereof said applications shall be null and void and shall 
be canceled by the surveyor general, and if the same shall have been filed through 
inadvertence or mistake, or if the surveyor general shall, after the withdrawal of such 
lands from public entry, have received any application, by any applicant claiming 
the right to have the lands in said application described selected or located in, lieu 
of any of said lands so withdrawn from public entry, or by reason of any fact entitling 
the State to make an indemnity selection the said application shall likewise be null 
and void, and the said applicant shall have no right to have the lands applied for 



22 LANDS FOR EDUCATIONAL PURPOSES. 

by him selected in lieu of the lands designated by him, or in lieu of any lands in 
said reservation, or for any reason or fact whatsoever." 

Section 3408-C, also found in said act of March 24, 1909, provides that the surveyor 
general shall determine the amount of land the State is entitled to and keep a record 
of what the bases of the indemnity claims consist. 

"In determining the bases in lieu of which the State is entitled to indemnity, the 
surveyor general shall also include all sixteenth and thirty-sixth sections which 
were surveyed at the time of the withdrawal of such lands from public entry or at 
any time thereafter: Provided, however, that should the Land Department of the United 
States determine such surveyed sections are improper or invalid bases, then the sur- 
veyor general shall not be required thereafter to consider or treat said surveyed sec- 
tions as valid or any bases for indemnity selections." 

By section 3408-D, also from said act of March. 24, 1909, pro-sdsion is further made 
for the sale at public auction to the highest bidder for cash to persons qualified to 
purchase State lands, indemnity certificates or scrip, with limitation as to the qualifi- 
cations of the purchaser, the acreage of the indemnity certificates, and the manner in 
which such certificates may be used in the subsequent location of lieu lands. (Stats., 
1909, p. 680.) 

By the act of April 24, 1909, the title to lands selected by the State in lieu of sur- 
veyed school sections within the exterior boundaries of national reservations was 
validated. 

"Section 1. The selection of all lands heretofore made by the sm-veyor general 
from the Government of the United States in lieu of surveyed school sections situated 
within the exterior boundaries of national reservations created by proclamation 
of the President of the United States and which have been listed to the State of Cali- 
fornia, and also all such selections which are now pending before the Land Depart- 
ment of the United States when listed to the State, are hereby declared to be good 
and valid, and to vest the title of the LTnited States and the State when said State 
shall have issued its patent therefor, to such lands in the applicant, his successors 
or assigns, for whom such selection was made, and the title of the State of California 
in and to such surveyed school sections so used as bases for such indemnity selections 
shall vest in the United States at the date of such listing to the State and the title of 
the said State shall be deemed to be released and quitclaimed to the said L'nited 
States at the time of such listing to the State as aforesaid. 

"Sec. 2. This act shall take effect from and after its passage." (Stats. 1909, 
p. 1091.) 

By act of April 21, 1913, Consolidated Supplement 1911 and 1913, page 540, pro- 
vision is made for the sale of certain school lands not situated within the exterior 
boundaries of a military. Indian, or forest reservation created by authority of the 
United States, or of a national forest, national park, or national monument, or within 
the exterior boundaries of lands withdrawn from public entry for forest pui-poses; 
and also directed : 

"The sixteenth and thirty-sixth sections of school lands which are situated within 
the exterior boundaries of a military, Indian, or forest reservation created by authority 
of the United States, or of a national forest, national park, or national monument, or 
within the exterior boundaries of lands withdrawn from public entry for forest piu- 
poses, are withdrawn from sale. Nothing herein contained shall be construed as a 
recognition that the said sixteenth and thirty-sixth sections last above referred to . 
have not heretofore been withdrawn from sale." 

DECISIONS OF THE COURTS ON EXCHANGE QUESTION. 

The amendatory act of 1891 does not authorize any exchange of lands between the 
Federal and State Governments, but only the indemnification of the State for the 
loss of lands to which it was entitled. The act does not give to the State the right to 
select other lands of equal acreage with the school sections where the latter are in- 
cluded within the exterior boundaries of a forest reservation subsequent to the survey 
in the field, and the title thereto has thus become vested in the State. (Hibberd v. 
Slack, 84 Fed. Rep., 571; Deseret Water, Oil & Irrigation Co. v. The State of Cali- 
fornia, 138 Pac. Rep., 981.) 

THE LAKE PROTESTS. 

Due to the decisions of the department as heretofore cited, and the judicial holdings 
to the contrary with respect to the exchange provisions of the act of 1891, and relying 
upon the latter, Fred W. Lake, of Oakland, Cal., representing a large number of 
applicants, made application to the State surveyor general, for the purchase of sur- 
veyed school sections in place within forest reserves, and November 29, 1909, so 
advised the General Land Office, and of the further fact that suits in the courts of the 



LANDS FOR EDUCATIONAL PUEPOSES. 23 

State, to enforce rights acquired by such applications had been brought in some of 
the cases and were then pending, and that the purpose of his letter was to put the 
department upon notice of the claims thus asserted to the school lands in place. This 
protest is now pending in the department (D-29027), in connection with which a 
report was made by this office December 5, 1914, calling attention to the decision 
rendered July 25, 1914, in the District Court of Appeals of the First Appellate District 
of the State of California, in the case of Frank H. Ayers et al v. W. S. Kingsbury, State 
Surveyor General and ex officio Register of the State Land Office, wherein it appears 
that a petition for a writ of mandamus to compel the State officials to receive an appli- 
cation for the purchase of school lands from the State was denied; and that the supreme 
court on September 23, 1914, refused to entertain a petition for a hearing in said matter. 

The State of Oregon. 

By act of Congress approved February 14, 1859 (11 Stat., 383), the State was ad- 
mitted to the Union. 

By section 4 of the act of admission, several propositions were submitted to the 
people of the State for their consideration as follows: 

"The following propositions be, and the same are hereby, offered to the said people 
of Oregon for their free acceptance or rejection, which, if accepted, shall be obligatory 
on the United States and upon the said State of Oregon, to wit: First, that sections 
numbered sixteen and thirty-six in every township of public lands in said State, and 
where either of said sections, or any part thereof, has been sold or otherwise disposed 
of, other lands equivalent thereto, and as contiguous as may be, shall be granted to 
said State for the use of schools." 

The State of Oregon, by its legislature, June 3, 1859 (Lord's Oregon Laws, p. 29), 
accepted the above proposition with the others thus submitted. 

STATE CONSTITUTION. 

The constitution of Oregon was adopted prior to the act of admission, hence no 
reference is found therein to the disposition of the specific sections subsequently 
granted to the State. 

STATE LEGISLATION. 

Section 3881, Lord's Oregon Laws: 

"Classification op State lands. — For the purpose of this act the State lands 
shall be classified as follows: (a) School lands: Sections sixteen and thirty-six in each 
township granted to the State by act of Congress approved February fourteenth, 
eighteen hundred and fifty-nine; all lands selected for internal improvements under 
the act of Congress of September fourth, eighteen hundred and forty-one, and all 
lands selected for capital building purposes under the act of Congress approved 
February fourteenth, eighteen hundred and fifty-nine, (b) Indemnity lands: Lands 
selected to satisfy losses in sections sixteen and thirty-six, as provided by the laws 
of the United States. * * *" 

Section 3895: 

"Board to fix price of certain lands — Minimum. — The State land board may 
fix the price at which school, university, college, and swamp lands may be sold: 
Provided, however, That no such lands shall be sold for less than |2.50 per acre." 

Section 3897: 

"Indemnity lands — Minimum. — The price of indemnity land shall be fixed from 
time to time by the State land board: Provided, however, That no such lands shall be 
sold for less than |5 per acre." 

Section 3930: 

"State land board may purchase lands in school sections in forest 
RESERVES. — The State land board is hereby authorized, in its discretion, to purchase 
lands in school sections within national forest reserves in Oregon, and to pay therefor 
an amount or amounts not exceeding the total in principal and interest actually paid 
to the State for the particular tract or tracts in question." 

Section 3931: 

"Minimum price when used as base. — In case lands acquired under the provi- 
sions of section thirty-nine hundred and thirty are used as bases for indemnity selec- 
tions, the lands selected shall not be sold at less than the minimum price per acre, 
as provided in section thirty-eight hundred and ninety-seven." 

Section 3932: 

"Board may permit purchase of indemnity land. — The State land board shall 
have authority, in its discretion, to permit a person or corporation reconveying 
land to the State under this act to purchase all or any part of the land selected on 



24 LANDS FOR EDUCATIONAL PURPOSES. 

said reconveyed land as base: Provided, That application for the land to be selected is 
presented at the time reconveyance of the land to be used as base is offered to the 
State." 

These sections, 3930, 3931, and 3932, were repealed by act of the legislature adopted 
February 11, 1911 (General Session Laws, p. 65). 

COURT DECISIONS. 

United States v. Cowlishaw et al. (202 Fed. Rep., 317), arose under the Oregon 
school grant. 

"The language of the act is 'shall be granted.' This has never been construed, 
fhat I am aware of, as a grant in praesenti, but it rather looks to the future, as depend- 
ing on some future act or event, and as not to become effective until such act or event 
has taken place or happened. It is manifest that the act is not a grant of all sections 
16 and 36 within the territorial limits of the State; for it provides that if such sections, 
or any part thereof, have been sold or otherwise disposed of, other lands equivalent 
thereto, and as contiguous as may be, shall be granted. This again raises the inquiry 
as to when the grant is to become effective as an actual transfer of the lands to the 
State. As to the lands to be granted in the place of the school sections, or any part 
thereof, sold or otherwise disposed of, it is very plain that there could be no passing 
■of title until they were identified by some approved method of selection from the 
public domain. * * * 

"It would seem to be a logical deduction from these authorities, therefore, that the 
grant of the school sections does not vest the title thereof in the State until they have 
become identified through a survey determining their location. In further support 
of this view, see also Hibbard v. Slack (C. C), (84 Fed., 571), and State of Oregon 
(L. D.), decided July 5, 1912. 

"As to the case of Beecher v. Wetherby (95 U. S., 517; 24 L. Ed., 440), there may 
be found expressions in the opinion seemingly opposed to this view; but the case itself 
does not seem to have been so considered by the Supreme Court in the Hitchcock 
case, although commented upon at some length. Furthermore, the case was decided 
subsequent to the Heydenfeldt case, with but a year intervening, and, although 
cited in the briefs of counsel, it was not referred to in the opinion of the court, so that 
we can not infer that it was the intention to overrule that case." 

The school grant of Oregon was also under consideration in the case of Cobban v. 
Hyde (212 Fed. Rep., 480), as follows: 

'The theory of the defense, which is quite urgently presented, is, in substance, 
that the terms of the Oregon enabling act operated as a grant in prsesenti, and, upon 
the acceptance by the State of its provisions, the State became clothed with an inde- 
feasible right to all the public lands within its borders which should thereafter be 
ascertained by actual survey to be embraced within the sixteenth and thirty-sixth 
sections; that, although title to the particular sections did not formally vest until 
the survey thereof was approved, the State was potentially clothed with the title 
for the reason that by the force of its terms the sixteenth and thirty-sixth sections 
were irrevocably appropriated to the use of the State, subject only to be thereafter 
identified by survey, and were thereby withdrawn from other sale or disposition 
by the United States; that it was thereafter not within the power of the Congress, 
or the President acting under subsequent legislation, to reserve or appropriate such 
lands or any part thereof to any other use; that the State had a perfect right to sell 
such lands in anticipation of the survey, and, upon such survey being made and 
approved, it inured to the benefit of the State and its grantees and operated to vest 
absolute title in fee thereto. 

"From this promise it is argued that notwithstanding the decision of the Land 
Department to the contrary a perfect title to the lands involved had vested in Bald- 
win at the time of the sale by defendant to plaintiff and the giving of the guaranty 
above set out; that the latter paper is therefore not to be construed as guaranteeing 
in Baldwin a valid title, which he already had, but as warranting only the regularity 
of the various steps therein recited as vesting suchtitle; that, so construed, the guar- 
anty affords no consideration for the notes sued on, but they must be held to have been 
given under a misapprehension by defendant of his legal obUgation thereunder. 
From this statement it will be observed that the essential question upon which the 
defense rests is whether the language of the enabling act is susceptible of the con- 
struction which the defendant thus seeks to place upon it. 

"In reaching his conclusion that title to the lands involved never vested in the 
State of Oregon, the Secretary of the Interior said in his opinion: 

" 'It is a well-established principle that the title of the State to the granted sec- 
tions does not vest until they have been designated by an approved survey, and 



LANDS FOR EDUCATIONAL PUEPOSES. 25 

that until the survey of the lands and the vesting of title Congress has absolute power 
and control over the granted sections and may dispose of them in any manner that 
it may deem proper, leaving the State to its right to indemnity therefor. That has 
been so frequently determined by the Supreme Court as to be no longer a subject of 
controversy. (Heydenfeldt v. Daney Gold Mining Co., 93 U. S., 634; 23 L. Ed., 
995.) Furthermore, the question was directly decided in Minnesota v. Hitchcock 
(185 U. S., 373-400; 22 Sup. Ct., 650; 46 L. Ed., 954); totidem verbis the same as 
the grant to the State of Oregon. In that case the court said that "the act of admis- 
sion, with its clause in respect to school lands, was not a promise by Congress that 
under all circumstances, either then or in the future, these specific school sections 
were or should become the property of the State. The possibility of other disposition 
was contemplated, the right of Congress to make it was recognized, and provision 
made for the selection of other lands in lieu thereof." (See also Wisconsin v. Hitch- 
cock, 201 U. S., 202; 26 Sup. Ct., 498; 50 L. Ed., 727.)' " 

"These views of the honorable Secretary would seem to be fully sustained by the 
authorities referred to by him." 

The case of Morrison et al v. United States, in the Circuit Court of Appeals, Ninth 
Circuit, February 2, 1914 (212 Fed. Rep., 29), involved a consideration of the school 
grant to the State of Oregon where, after reciting the history of the reservation for 
the Territory and the subsequent grant to the State on its admission, the court said: 

"The proposition so submitted to the people of Oregon having been accepted by 
them, it can not be doubted, we think, that the legislation of Congress amounted to 
a congressional grant to that State of all the sixteenth and thirty-sixth sections for 
school purposes, to which no right of any third party attached prior to the proper 
identification of such sections. 

"Such identification of the lands here in controversy was first made by the survey 
in the field June 2, 1902, which survey, it appears, was approved on the same day by 
the United States surveyor general for the State of Oregon, and by him transmitted 
to the General Land Office on the 8th of the same month, where it remained un- 
altered until its express approval by that office on the 31st day of January, 1906, and 
where in the meantime it met with recognition and was acted upon to identify the 
lands in question by the Commissioner of the General Land Office on the 12th and 
19th days of December, 1905, and by the Secretary of the Interior on the 16th day of 
December, 1905, in making his order of withdrawal relied upon by the Government 
in the present case. The fact that there was a delay of about three and one-half years 
in the express approval of the survey by the Commissioner of the General Land Office 
is, in our opinion, wholly unimportant, and by no means unusual. The approval, 
when made, under the familiar doctrine of relation adopted by the courts for purposes 
of justice, related back to the inception of the proceeding, thereby perfecting the 
grant which was promised by the Government when Oregon was a TerritOiy, and con- 
firmed when it, as a State, accepted the propositions offered by Congress in its en- 
abling act of 1859. It was, as said by the Supreme Court in a similar case — 

"'An unalterable condition of the admission, obligatory upon the United States, 
that section 16 in every township of the public lands in the State, which had not been 
sold or otherwise disposed of, should be granted to the State for the use of schools. 
It matters not whether the words of the compact be considered as merely promissory 
on the part of the LTnited States, and constituting only a pledge of a grant in future, 
or as operating to transfer the title as soon as the sections could be afterwards identified 
by the public surveys. In either case, the lands which might be embraced within 
those sections were appropriated to the State. They were withdrawn from any other 
disposition, and set apart from the public domain, so that no subsequent law authoriz- 
ing a sale of it could be construed to embrace them , although they were not specially 
accepted. All that afterwards remained for the United States to do with respect to 
them, and all that could be legally done under the compact, was to identify the 
sections by appropriate surveys; or, if any further assurance of title was required, 
to provide for the execution of proper instruments to transfer the naked fee, or to 
adopt such further legislation as would accomplish that result. They could not be 
diverted from their appropriation to the State.' ("Beecher v. Wetherby, 95 U. S., 
517; 24 L. Ed., 440.)" 

The State of Nevada. 

Admitted by proclamation October 31, 1864 (13 Stat., 749). 

By the Territorial organic act of March 2, 1861 (12 Stat., 209, sec. 14), provision was 
made: 

"That when the land in said Territory shall be surveyed, under the direction of the 
Government of the United States, preparatory to bringing the same into market, 
sections numbered sixteen and thirty -six in each township in said Territory shall be, 



26 LAKDS FOR EDUCATIONAL PURPOSES.^ 

and the same is hereby, reserved for the purpose of being applied to schools in the 
States hereafter to be erected out of the same." 

Section 7 of the State enabling act of March 21, 1864 (13 Stat., 30), made the following 
grant: 

"That sections numbers sixteen and thirty-six, in every township, and where such 
sections have been sold or otherwise disposed of by act of Congress other lands equiva- 
lent thereto in legal subdivisions of not less than one quarter section, and as contiguous 
as may be, shall be, and are hereby, granted to said State for the support of common 
schools." 

STATE CONSTITUTION. 

By article 11, section 3, all lands, including the sixteenth and thirty-sixth sections, 
donated for the benefit of public schools, as well as other lands granted by Congress 
for educational pm-poses, and the proceeds thereof are solemnly pledged and set apart 
for educational purposes. 

FEDERAL LEGISLATION. 

A limitation upon the grants of public lands to Nevada, in so far as minerals may be 
found therein, was made by the act of July 4, 1866 (14 Stat., 85) : 

"That in extending the surveys of the public lands in the State of Nevada t,he 
Secxfetaiy of the Interior may, in his discretion, vary the lines of the subdivisions from 
a rectangular form, to suit the cii'cumstances of the country; and in all cases lands 
valuable for mines of gold, silver, quicksilver, or copper, shall be reserved from sale." 

The provisions of this act were accepted by the State through its legislative assent 
of February 13. 1867. 

By the act of June 16, 1880 (21 Stat., 287), the original grant in place of school lands 
to the State of Nevada was changed to a grant of quantity in the manner following: 

"Whereas, the Legislature of the State of Nevada on March eighth, eighteen hundred 
and seventy-nine, passed an act accepting from the United States a gi-ant of two 
millions or more acres of land in lieu of the sixteenth and thii'ty-sixth sections therein, 
and relinquishing to the United States all such sixteenth and thirty-sixth sections in 
said State as have not been heretofore sold or disposed of by said State, and which act 
of said State is in words as follows, to wit: 

" ' An act accepting from the United States a gi-ant of two millions or more acres of 
land in lieu of the sixteenth and thirty -sixth sections, and relinquishing to the United 
States all such sixteenth and thirty-sixth sections as have not been sold or disposed 
of by the State. 

" 'The people of the State of Nevada represented in senate and assembly do enact as 
follows : 

"'Section 1. The State of Nevada hereby accepts from the United States not less 
than two millions of acres of land in the State of Nevada in Ueu of the sixteenth and 
thirty-sixth sections heretofore granted to the State oi Nevada by the United States: 
Promded, That the title of the State and its gi-antees to such sixteenth and thiity- 
sixth sections as may have been sold or disposed of by the State prior to the enact- 
ment of any such law of Congress granting such two millions or more acres of land 
10 the State shall not be changed or vitiated in consequence of or by virute ot such 
act of Congress granting such two millions or more acres of land, or in consequence 
of or by virtue of this act suiTendering and relinquishing to the United States the 
sixteenth and thirtj'-sixth sections unsold or undisposed of at the time such grant 
is made by the United States. 

" ' Sec . 2 . The State of Nevada, in consideration of such grant of two millions or more 
acres of land by the United States, hereby relinquishes and surrenders to_ the United 
States all its claims and title to such sixteenth and thirty-sixth sections in the Sta,te 
of Nevada heretofore granted by the United States as shall not have been sold or dis- 
posed of subsequent to the passage of any act of Consress that may hereafter be naade 
granting sucn two millions or more acres ot land to the State of Nevada: Provided, 
That the State of Nevada shall have the right to select the two millions or more acres 
of land mentioned in the act ' : 

"Therefore 

"Beit enacted by the Senate and Home of Representatives of the United States of America 
in Congress assernbled, That there be, and are hereby, granted to the State of Nevada 
two million acres of land in said State in Ueu of the sixteenth and thirty-sixth sections 
of land heretofore granted to the State of Nevada by the United States: Provided, 
That the title of the State and its grantees to such sixteenth and thirty-sixth sections 
as may have been sold or disposed of by said State prior to the passage of this act 
shall not be changed or vitiated in consequence of or by virtue of this act. 

"Sec. 2. The lands herein granted shall be selected by the State authorities of said 
State from anv unappropriated, nonmineral, public land in said State, in quanti- 



LANDS FOR EDUCATIONAL PUEP03ES. 27 

ties not less than the smallest legal subdivision; and when selected in conformity 
with the terms of this act the same shall be duly certified to said State by the Com- 
missioner of the General Land Office and approved by the Secretary of the Interior. 

"Sec. 3. The lands herein granted shall be disposed of under such laws, rules, and 
regulations as may be prescribed by the Legislature of the State of Nevada: Provided, 
That the proceeds of the sale thereof shall be dedicated to the same purposes as hereto- 
fore provided in the grant of the sixteenth and thirty-sixth sections made to said State. 

"Sec. 4. This act shall take effect from and after its passage." 

DECISIONS OP THE DEPARTMENT. 

The policy of Congress, in dealing with mineral lands, as expressed in the statutory 
rule of construction prescribed by the joint resolution of January 30, 1865 (13 Stat., 
567), was recognized in the Secretary's instructions of May 20, 1870 (Copp's U. S. 
Mining Decisions, 81), wherein it was said: 

"Sir: I have received your letter of the 10th instant, in relation to the right of the 
State of Nevada to sections 16 and 36 of each township, for school purposes, when such 
sections are found to contain mines. 

"The seventh section of the enabling act of 21st March, 1864, passed at the first ses- 
sion of the Thirty-eighth Congress, grants to said State said sections, unless sold or 
otherwise disposed of by any act of Congress. 

"Joint resolution of the 30th January, 1865 (13 Stat., 567), declares: 'That no act 
passed at the first session of the Thirty-eighth Congress, granting lands to States or 
corporations, to aid in the construction of roads, or for other purposes, or to extend 
the time of grants heretofore made, shall be so construed as to embrace mineral lands, 
which in all cases shall be, and are, reserved exclusively to the United States, unless 
otherwise specially provided in the act, or acts, making the grant.' 

"This joint resolution prescribes a rule of construction which, applied to the act, 
would exclude from its operation mineral lands. Such lands are reserved exclusively 
to tiie United States unless 'otherwise specially provided ' in the act raaking the grant. 

"In view of this legislation, and of the considerations set forth in your letter, it 
seems to be clear that an executive officer must regard a section of land, No. 16 or 36 
situate in Nevada and 'rich in minerals,' as the property of the United States and not 
as passing to the State under the act and should deal with it accordingly." 

DECISIONS OF THE COURTS. 

The announcement of the Supreme Court of the United States that Congress followed 
a settled policy in the disposition of mineral lands, and that a grant, therefore, of 
sections 16 and 36 for school purposes did not include mineral lands, though such 
lands were not in terms excepted therefrom, was first made at the October term, 
1876, in the case of Heydenfeldt v. Deney Gold & Silver Mining Co. (93 U.S., 634); 
but, not resting its decision entirely on this general conclusion, the court said: 

"These views dispose of this case; but there is another ground eqaallv conclusive. 
Congress, on the 4th of July, 1866 (14 Stat., 85), by an act concerning lands granted 
to the Stat« of Nevada, among other things, reserved from sale all mineral lands in the 
State and authorized the lines of surveys to be changed from rectangular, so as to 
exclude them. This was doubtless intended as a construction of the grant under 
consideration; but whether it be correct or not, and whatever may be the effect of 
the grant in its original shape, it was clearly competent for the grantee to accept it 
in its modified form and agree to the construction put upon it by the grantor. The 
State, by its legislative act of February 13, 1867, ratified that constri ction and accepted 
tha grant with the conditions annexed. 

"We agrse with the Sup-eme Court of Nevada that this acceptance 'was a recognition 
hv the legislature of the State of the validity of the claim made by the Government 
,of the United States to the mineral lands.' 

"It is objected that the constitution of Nevada inhibited such legislation, but the 
supreme court of the State, in the case we are reviewing, held that it did not (10 Nev., 
314); and we think their reasoning on this subject is conclusive." 

COMMENT. 

■ The grant to this State has been included herein, for the reason that it was under 
its provisions the Supreme Court first recognized the "policy" of Congress in dealing 
with mineral lands as an essential element in the construction of the school grant, a 
doctrine which received a fuller discussion and broader recognition in the later case 
of Mining Co. v. Consolidated Mining Co. (102 U. S., 167). 



28 LANDS FOE EDUCATIONAL PURPOSES. 

Prior thereto Congress had by the joint resolution of January 30, 1865, supra, and 
the act of July 4, 1866, supra, definitely indicated its purpose to exclude mineral 
lands from the school grant, and this intention was carried into effect by the depart- 
ment May 20, 1870, supra, from all of which the reasons moving the State to ask for 
a grant of quantity, in lieu of one in place, are fully apparent. 

The State of Colorado. 

The grant of school lands was made to this State by the enabling act of March 3, 

1875 (18 Stat., 474), by which it is provided: 

"Sec. 7. School lands. — The sections numbered sixteen and thirty-six in ever^ 
township, and where such sections have been sold or otherwise disposed of by any 
act of Congress, other lands equivalent thereto in legal subdivisions of not more than 
one-quarter section, and as contiguous as may be, are hereby granted to said State 
for the support of common schools." 

"Sec. 14. School lands — How sold. — That the two sections of land in each 
township herein granted for the support of common schools shall be disposed of only 
at public sale and at a price not less than §2.50 per acre, the proceeds to constitute a 
permanent school fund, the interest of which to be expended in the support of com- 
mon schools. 

"Sec. 15. Mineral lands excepted.— That all mineral lands shall be excepted 
from the operation and grants of this act. " 

The State was admitted to the Union by proclamation of the President August 1, ' 

1876 (19 Stat., 665).^ 

state constitution. 

Article 9 of the constitution provides: ' ' 

"Sec. 9. State board of land commissioners. The governor, superintendent of 
public instruction, secretary of state and attorney general, shall constitute the State 
board of land commissioners, who shall have the direction, control, and disposition 
of the public lands of the State, under such regulations as may be prescribed by law. 
"Sec 10. Selection and control of public lands. — It shall be the duty .of the 
State board of land commissioners to provide for the location, protection, sale, or other 
disposition of all the lands heretofore or which may hereafter be granted to the State 
by the General Government, under such regulations as may be prescribed by law, 
and in such manner as will secure the maximum possible amount therefor. No law 
shall ever be passed by the general assembly granting any pri\'ileges to persons who 
may have settled upon any such public lands subsequent to the survey thereof by the 
General Government by which the amount to be derived by the sale or other disposi- 
tion of such lands shall be diminished, directly or indirectly. The general assembly 
shall, at the earliest practicable period, provide by law that the several grants of land 
made by Congress to the State shall be judiciously located and carefully preserved 
and held in trust subject to disposal, for the use and benefit of the respective objects 
for which said grants of land were made, and the general assembly shall provide for 
the sale of said lands from time to time, and for the faithful application of the proceeds 
thereof in accordance with the terms of said grants." 

state legislation. 

The Revised Statutes of Colorado, 1908, provide: 

"5181. Sale of school lands — Auction — ^Minimum price (sec. 62). — All lands 
granted by Congress to the State for the support of common schools, being sections six- 
teen and thirty-six, and all that may be selected in lieu of said sections, are hereby 
withdrawn from market, and the sale thereot prohibited: Provided, Parcels of not less 
than forty acres of such land may be sold when the State board is of the opinion that 
the best interests of the school fund will be served by offering such parcel for sale: 
Provided further , That such land shall only be sold at public auction, and at not less 
than S3. 50 per acre: Provided, That school lands" shall not be offered for sale except 
upon the conditions hereinafter provided for the sale of other State lands." 

"5218. Exchange of lands in forest reserves (sec. 99). — The State board of 
land commissioners is hereby authorized and empowered to exchange any lands the 
income from which is devoted to the public schools of Colorado, the State university, 
the State agricultural college, penitentiary, internal improvements, saline or any 
other lands which may be under the control of said State of Colorado by the Congress 
of the United States, and which lands are situated within the exterior boundary line 
of any Federal forest reserve which may have been heretofore, or shall be hereafter 
established, for such unappropriated Federal lands in the State of Colorado as the 



LANDS FOR EDUCATIONAL PURPOSES. 29 

State board of land commissioners may select ; and the register of said land board is 
hereby empowered to sign all papers necessary to such transfer, under the direction 
of said board. " 

State of Washington. 

By sections 10 and 11 of the act of February 22, 1889 (25 Stat., 676), enabling the 
States of Washington, Montana, South Dakota, and North Dakota, to enter the Union, 
a grant of school lands was made as follows : 

"Sec. 10. That upon the admission of each of said States into the Union sections 
numbered sixteen and thirty-six in every township of said proposed States, and where 
such sections, or any parts thereof, have been sold or otherwise disposed of by or 
under' the authority of any act of Congress, other lands equivalent thereto, in legal sub- 
divisions of not less than one-quarter section, and as contiguous as may be to the 
section in lieu of which the same is taken, are hereby granted to said States for the 
silpport of common schools, such indemnity lands to be selected within said States in 
such manner as the legislature may provide, with the approval of the Secretary of the 
Interior: Provided, That the sixteenth and thirty-sixth sections embraced in permanent 
reservations for national purposes shall not, at any time, be subject to the grants nor 
to the indemnity provisions of this act, nor shall any lands embraced in Indian, 
military, or other reservations of any character be subject to the grants or to the in- 
demnity provisions of this act until the reservation shall have been extinguished and 
such lands be restored to and become a part of the public domain. 

"Sec. 11. That all lands herein granted for educational purposes shall be disposed 
of only at public sale, and at a price not less than |10 per acre, the proceeds to consti- 
tute a permanent school fund, the interest of which only shall be expended in the sup- 
port of said schools. But said lands may, under such regulations as the legislatures 
shall prescribe, be leased for periods of not more than five years, in quantities not 
exceeding one section to any one person or company; and such land shall not be sub- 
ject to preemption, homestead entry, or any other entry under the land laws of the 
United States, whether surveyed or unsurveyed, but shall be reserved for school pur- 
poses only." 

'.'Sec. 18. That all mineral lands shall be exempted from the grants made by this 
act.. But if sections sixteen and thirty-six, or any subdivision or portion of any small- 
est subdivision thereof in any township shall be found by the Department of the 
Interior to be mineral lands, said States are hereby authorized and empowered to select, 
in legal subdivisions, an equal quantity of other unappropriated lands in said States, 
in lieu thereof, for the use and the benefit of the common schools of said States. 

"Sec. 19. That all lands granted in quantity or as indemnity by this act, shall be 
selected, under the direction of the Secretary of the Interior, from_ the siu-veyed, 
unreserved, and unappropriated public lands of the United States within the limits 
of the respective States entitled thereto. And there shall be deducted from the num- 
ber of acres of land donated by this act for specific objects to said States the number of 
acres in each heretofore donated by Congress to said Territories for similar objects." 

The State was admitted to the Union bv proclamation, November 11, 1889. 

Act of December 18, 1902 (32 Stat., 756): 

"That in all cases where sections sixteen and thirty-six, or either or any of them, 
or any portion thereof, have been occupied by actual settlers prior to survey thereof, 
and the county commissioners of the counties in which said sections so occupied as 
aforesaid are situated, have, under said act of Congress of March second, eighteen 
hundred and fifty-three, located or selected other lands in sections or fractional sec- 
tions, as the case may be, within their respective counties, in lieu of said section so 
occupied as aforesaid, the lands so located or selected, when the same shall have 
been approved by the Secretary of the Interior, shall be deemed and taken to have 
been granted to said State by said act of February twenty -second, eighteen hundred 
and eighty-nine, and the title of said State thereto is hereby confirmed. 

"Sec. 2. That where any lands appropriated by Congress to said Territory to 
compensate deficiencies for school purposes, where sections sixteen or thirty-six 
were fractional in quantity, or where one or both were wanting by reason of the town- 
ship being fractional, or from any natural cause whatever, or where section sixteen 
or thirty-six were patented by pre-empters, have been selected and appropriated 
as provided in said act of Congress of February twenty-sixth, eighteen hundred and 
fifty-nine, the lands so selected and appropriated, when the same shall have been 
approved by the Secretary of the Interior, shall be deemed and taken to have been 
granted to said State of Washington by the said act of February twenty-second, 
eighteen hundred and eighty-nine, and the title thereto confirmed." 



30 LANDS FOE EDUCATIOlSrAL PURPOSES. 

STATE CONSTITUTION. 

By Article XVI, section 1, of the constitution adopted by the State of Washington, 
it is provided : 

"All the public lands granted to the State are held in trust for all the people, and 
none of such lands, nor any estate or interest therein, shall ever be disposed of unless 
the full market value of the estate or interest disposed of, to be ascertained in such 
manner as may be provided by law, be paid or safely secured to the State; nor shall 
any lands which the State holds by grant from the United States (in any case in 
which the manner of disposal and minimum price are so prescribed) be disposed of 
except in the manner and for at least the price prescribed in the grant thereof, without 
the consent of the United States." 

Section 2 of the same article makes the following provision: 

"None of the lands granted to the State for educational purposes shall be sold other- 
wise than at pubhc auction to the highest bidder; and the value thereof, less the 
improvements, shall, before any sale, be appraised by a board of appraisers, to be 
pro^dded by law, the terms of payment also to be prescribed by law, and no sale shall 
be valid unless the sum bid be equal to the appraised value of said land. In esti- 
mating the value of such lands for disposal, the value of improvements thereon shall 
be excluded." 

STATE LEGISLATION. 

Section 6650, General Statutes of Washington: 

"The board of State land commissioners shall have authority and power to relin- 
quish to the United States all lands heretofore selected by the Territory of Washington,', 
or any officer, board, or agent thereof, or by the State of Washington, or any officer, 
board , or agent thereof, or which may be hereafter selected by the State of Washington, 
or any officer, board, or agent thereof, in pursuance of any grant of pubhc lands made 
by the United States or the Congress thereof to the Territory or State for any purpose 
or upon any trust whatever, the selection of which has failed or been rejected, or shall 
fail or shall be rejected for any reason." 

Section 6661, General Statutes, provides for the appraisement and sale of lands 
granted to the State after due inspection and classification, at a price of not less than, 
flO per acre for lands granted for educational purposes. By section 6635, paragraphs 
1, 2, and 3, Codes and Statutes of 1913, the following provisions are made: 

"Sec. 6635-1. For the purpose of obtaining from the United States indemnity or 
lieu lands for such lands granted to the State for common schools, educational, penal, 
reformatory, charitable, capitol building or other pm'poses, as have been or may be 
lost to the State, or the title to or use or possession of which is claimed by the United 
States or by others claiming by, tlirough or under the United States, by reason of any 
of the causes entitling the State to select other lands in lieu thereof, the inclusion of 
the same in any reservation by or under authority of the United States, or any other 
appropriation or disposition of the same by the United States, whether such lands 
are now surveyed or unsm'veyed, the commissioner of public lands, with the advice 
and approval of the board of State land commissioners and the attorney general, is 
authorized and empowered to enter into an agreement or agreements, on behalf of the 
State, with the proper officer or officers of the United States for the relinquishment 
of any such lands and the selection in lieu thereof, under the provisions of this act, 
of lands of the United States of equal area and value. 

"Sec. 6635-2. Upon the making of any such agreement, the board of State land 
commissioners shall be empowered and it shall be their duty to cause such examina- 
tion and appraisal to be made as will determine the area and value, as nearly as may 
be, of the lands lost to the State, or the title to, use or possession of which is claimed 
by the United States by reason of the causes mentioned in section 6635(1), and pro- 
posed to be relinquished to the United States, and shall cause an examination and ap- 
praisal to be made of any lands wMch may be designated by the officers of the United 
States as subject to selection by the State in lieu of the lands aforesaid, to the end 
that the State shall obtain lands in Lieu thereof of equal area and value. 

"Sec. 6635-3. Whenever the title to any lands selected under the provisions of this 
act shall become vested in the State of Washington by the acceptance and approval 
of the Lists of lands so selected, or other proper action of the United States, the gover- 
nor, on behalf of the State of Washington, shall execute and deliver to the United 
States a deed of conveyance of the lands of the State relinquished imder the provisions 
of this act, which deed shall convey to and vest in the United States all the right, title 
and interest of the State of Washington therein. " 



LANDS FOE EDUCATIONAL PUEPOSES. 31 

DECISIONS OF THE STATE AND FEDERAL COURTS. 

In Wheeler v. Smith (5 Wash., 704) the court, commenting on the reservation of 
sections 16 and 36 created by the act of 1853, for the subsequent State of Washington, 
said: 

"This section had been followed up by section 10 of the enabling act approved Feb- 
ruary 22, 1889, before the plaintiff's placer locations were made, making a present 
grant of sections 16 and 36 to the State, to take effect as soon as the State was organ- 
ized. " ^ 

The language thus used, however, was applied in a case where an effort was made 
to secure title under a public land law to a school section after the passage of the enabl- 
ing act and the survey of the land. 

State pf Washington v. Whitney (120 Pac. Rep. , 116) . This decision of the Supreme 
Court of the State of Washington passed upon two questions, namely, (1) the charac- 
ter of the grant as made by the enabling act, and (2) the effect of the amendatory 
actof February 28, 1891. 

Under the first point it held : 

"We therefore hold that the words of giant in our enabling act are words of present 
grant, and that when, by the adoption of its constitution, the Scate affirmed the pro- 
visions of the enabling act and such constitution was approved by the United States, 
and the_ State of Washington thereupon fully admitted into the Union, the grant 
defined in the enabling act took effect as of its date and passed the entire title of the 
United States as fully and completely as though such sections 16 and 36 had been 
previously surveyed and were then capable of exact identification." 

Under the second point it was held that the act of Congress February 26, 1859 
■ (11 Stat., 385), was a general act relating to preemptions and provided that where set- 
tlements made before a survey of the lands in the field were found to have been on 
sections 16 and 36, such sections should be subject to preemption claim of the settler. 
The amendment of this general statute by the act of February 28, 1891 (26 Stat., 796), 
was not intended to nor did it operate as a repeal of the enabling act, which was spe- 
cial in its character and limited to the States then under consideration. 

The State of Washington y. Johanson (26 Wash., 668). This case involved the title 
of a school indemnity selection made and approved prior to the enabling act, as against 
a settler subsequent thereto. 

The court recited at length the provisions contained in the act of March 2, 1853 (10 
Stat., 172), reserving lands for the benefit of the Territory; the act of February 26, 
1859 (11 Stat., 385). providing for indemnity, and applicable to all the Territories; 
and, finally, cfthe enabling act of February 22, 1889 (25 Stat., 676). 

The court pointed out at considerable length that the provisions authorizing indem- 
nity selections on behalf of the Territory were made for the protection of settlers, of 
whom it was said : 

"It was known that such settlers would occupy these lands in advance or the sur- 
veys. The injustice of denying a bona fide settler the right to acquire title to land 
he should so occupy and improve in ignorance of its true location was so manifets 
that legislation was necessary for its protection. * * * 

"The conditions anticipated by Congress actually happened, settlements were 
made upon the public domain within the Territory prior to the extension of the public 
surveys over it. Certain of these settlements were found to fall within sections 16 
and 36, and the Government, recognizing the settler's prior rights, patented the land 
to the settler. In lieu of certain lands occupied and lost to the use of the common 
schools in this way the board of county commissioners, pursuant to authority ex- 
pressly granted them by Congress, selected the lands in controversy. Tliis selection 
was pursuant to the same authority approved by the Secretary of the Interior. The 
lands so selected stood from that time until the passage of the enabling act with- 
drawn from settlement in place instead of lands which by that act, would, without 
question, have passed to the State under the descriptive terms in section 10 thereof 
had they not 'been sold or otherwise disposed of.' * * * 

"Reading all of these acts together, there can be no mistake as to the intent of 
Congress. It intended these lands for the use of the common schools of the State, 
and intended to grant them to the State for that purpose when it passed the enabling 
act." 

On appeal, this case was considered by the Supreme Court of the United States 
(190 U. S., 179), wherein the decision of the State court was affirmed, the court saying: 

"Tested by this rule, it is obvious that Congress intended that Washington should 
receive full sections 16 and 36, or, in case of a failure by reason of prior settlement 
or from natural causes, the equivalent of such sections, and designated the Secretary 
of the Interior as the officer to approve any selections made by the Territory. The 



32 LAIRDS FOR EDUCATIONAL PURPOSES. 

act of 1859 is as applicable to Washington as to any other Territory, notwithstanding 
that there was a special statute passed in 1853 in respect to it. While ordinarily a 
special law is not repealed by a subsequent general statute, unless the intent so to 
do is obvious, yet there is no rule which prevents the latter from applying to cases 
not provided for by the former. It is true the act of 1859 refers to the act of 1826 in 
reference to selections, and the act of 1826 designated the Secretary of the Treasury 
as the officer to select. * * * 

"But still fvuther, it appearing that some question had been mooted as to the intent 
of Congress in respect to these matters the confirmatory statute of 1902 was enacted, 
and that obviously removes all doubt. It confirms the title to selected lands 'when 
the same shall have been approved by the Secretary of the Interior.' This does not 
refer alone to future action by the Secretary, but ratifies that which he has already 
done. He has approved this selection and the act of 1902 places the title of the State 
beyond controversy." 

DEPARTMENTAL DECISIONS. 

In the case of Washington v. Geisler, decided March 8, 1913 (41 L. D., 621), the 
department collated its prior decisions construing the grant to this State, considered 
the decision of the State court in State v. Whitney (120 Pac. Rep., 116), and adhered 
to its former line of decisions that the State takes no title until the school sections are 
identified by survey, and that prior thereto it is competent for Congress to make other 
disposition of the land . 

SPECIAL PLAN OP ADJUSTMENT BETWEEN THE STATE AND DEPARTMENT OP AGRI- 
CULTURE — MEMORANDUM OP AGREEMENT. 

It is agreed between the Department of Agricultm'e of the United States of America, 
through D. F. Houston, the Secretary of Agriculture, and the State of Washington, 
through Clark V. Savidge, its commissioner of public lands, with the consent and 
approval of the board of State land commissioners and the attorney general of said 
State, acting under and pm'suant to chapter 102 of the laws of Washington for 1913, 
that the following plan of adjustment may be adopted to the end that the State of 
Washington may satisfy deficiencies of lands granted to the State for common-school 
purposes (sees. 16 and 36), occasioned by the inclusion of such lands prior to siurvey 
thereof within the national- forests and the Olympic National Monument in said State, 
and by homestead settlements thereon prior to survey and inclusion within the 
reservations named, and that the details of such plan are to be worked out as soon as 
practicable. 

First. In order to carry out the plan above expressed, it is agreed that a representa- 
tive be appointed by the Secretary of Agriculture and a representative be appointed 
by the Board of State Land Commissioners of the State of Washington, and that such 
representatives shall make, with such assistance as may be necessary (a) an examina- 
tion upon the ground of all school sections within the above-named reservations 
unsurveyed at the time of the establishment of such reservations, excepting those 
which have already been relinquished to the United States as a basis for the selection 
of lieu lands; and (6) an examination upon the ground of all school sections within 
such reservations upon which settlements were made prior to survey and inclusion 
within such reservations and have not been abandoned, for the purpose of determining 
the value and area thereof, and shall report their findings to the Secretary of Agri- 
culture and the commissioner of piiblic lands for final approval. 

Second. Such representatives shall also make an examination upon the ground of 
lands equivalent in area and value to the school sections mentioned in paragraph one 
hereof lying within the present boundaries of national forests in the State of Wash- 
ington in such position that when eliminated therefrom all will lie outside the new 
exterior boundaries of such forests, to the end that upon such elimination such lands 
may be available for selection in lieu of the lands mentioned in paragraph one hereof. 
It is agreed that the lands to be eliminated for selection by the State shall include 
an area sufficient to compensate the State as nearly as possible for areas, if any, lost 
through the existence of fractional school sections resulting from the public land 
surveys within such reservation. 

Third. It is agreed that upon the completion of the examination of the lands in the 
field as herein provided and upon agreement of the Secretary of Agriculture and the 
board of State land commissioners as to the lands to be selected in lieu thereof, the 
Secretary of Agriculture will recommend to the Congress that it enact legislation 
to permit the selection of the lands by the State. 

Fourth. It is agreed that the salary and expenses of the representatives above referred 
to who is to be appointed by the Secretary of Agriculture shall, if the Congress upon 



LANDS FOR EDUCATIONAL PURPOSES. 33 

recommendation of the Secretary shall appropriate sufficient funds for the purpose, 
be paid by the United States Department of Agriculture, and that the salary and ex- 
penses of the representative appointed by the commissioner of public lands shall 
be paid by the State of Washington, and that the salaries and expenses of any assistants 
employed by such representatives to carry out this agreement shall be borne jointly 
by the United States and the State of Washington, provided that Congress shall have 
previously appropriated sufficient funds to pay the share of the salaries and expenses 
of such assistants to be borne by the United States under this agreement. 

Fifth. The undersigned agree to the above proposition and agree to carry it out as 
far as they have official power and authority to do so. 

D. F. Houston, 
Secretary of Agriculture. 

C. V. Savidge, 
'Commissioner of Public Lands of the State of Washington. 
December 22, 1914. 

Approved. 

C. R. Jackson, 

J. W. BiRSLAWN, 

E. W.Ferris, _ 
Board of State Land Commissioners of the State of Washington. 

W. V. Tanner, 
Attorney General of the State of Washington . 

Note. — To enable the Secretary of Agriculture to carry out tliis agreement, Con- 
gress made an appropriation of $50,000 by act of March 4, 1915 (38 Stat., 1113). No. 
exchanges have yet been effected under this plan. 

The State of Montana. 

The grant of lands for common schools was made by sections 10 and 11 of the act of 
February 22, 1889 (25 Stat., 676), enabling the States of Washington, Montana, South 
Dakota, and North Dakota to enter the Union. For the terms of the grant, see State 
of Washington, herein. 

The State was admitted to the Union by proclamation November 8, 1889. 

state constitution. 

Article 17 of the State constitution : 

"All lands of the State that have been or that may be hereafter granted to the State 
by Congress * * * shall be public lands of the State, and shall be held in trust 
for the people, to be disposed of as hereafter provided, for the respective purposes for 
which they have been or may be granted, donated, or devised; and none of such land, 
or any estate or interest therein, shall ever be disposed of except in pursuance of gen- 
eral laws providing for such disposition, nor unless the full market value pi the estate 
or interest disposed of, to be ascertained in such manner as may be provided by law, 
be paid or safely secured to the State; nor shall any lands which the State holds by 
grant from the United States (in any case in which the manner of disposal and mini- 
mum price are so prescribed) be disposed of, except in the manner and for at least the 
price prescribed in the grant thereof, without the consent of the United States." 

state legislation. 

Section 2153', Code of Montana, 1907 : 

"No land heretofore granted the State must be sold for less than $10 per acre, but 
where land is not worth such sum it may be leased for a term not exceeding five years 
and at a rental to be determined by the board." 

Section 2161, Code of 1907, regulating the sale of school lands, also provides: 

"No land shall be sold for less than $10 per acre nor for less than its appraised value, 
and the amount of the purchase money to be paid at the time of the sale will be not 
less than thirty p er cent of the whole amount . " 

Section 215,5: 

"All selections of land must be made in legal subdivisions, and when the selection 
has been made and approved by the board, the governor must take the necessary 
steps to procure the approval of the Secretary of the Interior and the issuance of 
patents for the same by the United States to the,State of Montana: Provided, That not 
more than two hundred thousand acres shall be selected in any one county of the 

" H. Rept. 779, 64-1 3 



34 LANDS FOR EDUCATIONAL PURPOSES. 

State, unless it shall satisfactorily appear to the State board of land commissioners 
that no lands can be selected in those counties of the State wherein a less quantity than 
two hundred thousand acres have oeen selected." 

Section 2159: 

"That no further selections of any indemnity school land or of any land for any of 
the State institutions of learning, or for public buildings, shall be made in any county 
in which the State has already selected one hundred thousand acres or more of lands 
in the aggregate for such pnrposes."- 

Section 2195 authorizes the governor to execute any deeds of conveyance necessary 
to correct errors or mistakes arising in the adjustment of the school grant, or the distri- 
bi'tion of lands included therein. 

Section 2212 authorizes the sale to the United States for reclamation purposes of 
any land now or hereafter owned by the State of Montana and needed for such irriga- 
tion and reclamation work to the United States at the minimum price of $10 per acre, 
together with a right of way over all lands owned by the State for ditches, canals, 
tunnels, etc., in fartherauce of the reclamation of arid lands by the United States. 

[Senate bill No. 161. Introduced by committee on public lands.] 

AN ACT Authorizing the State land board to contract and agree with the United States for the waiver of 
the State's rights to unsurveyed school sections in forest reserves, and to accept lands in lieu thereof, and 
validating agreements heretofore made for that purpose. 

Be it enacted by the Legislative Assembly of the State of Montana: 
Section 1. That the State Board of Land Commissioners of the State of Montana, 
be, and are hereby, authorized and empowered to enter into contracts or agreements 
with the United States, or any department thereof, having jurisdiction, waiving and 
relinquisliing to the United States any and all rights of the State of 'Montana in and 
to sections sixteen and thirty-six of each townsMp, when said sections are situated 
within a Federal forest reserve, and are at the date of such contract, or agreement un- 
surveyed: Provided, That the State of Montana shall in lieu of the rights so waived 
and relinquished, receive from the United States other lands equal in area or value, 
and all contracts or agreements heretofore entered into between the State Board of 
Land Commissioners of the State of Montana, and the LTnited States or any depart- 
ment thereof relative to the waiving by the State of Montana of its rights to sections 
sixteen and tliirty-six in any townsliip in said State and the selection of lieu lands 
therefor by said State either according to area or value be and the same are hereby 
ratified, confirmed, and validated. 

Sec. 2. All acts and parts of acts in conflict herewith are hereby repealed. 
Sec. 3. This act shall be in full force and effect from and after its passage and 
approval. 

W. E. McDowell, 
President of the Senate. 
J. E. McNally, 
Speaker pi'o tempore of the House. 
Approved March 5, 1915. 

S. V. Stewart, Governor. 
Filed March 5, 1915, at 2.45 o'clock p. m. 

A. M. Alderson, Secretary of State. 

SPECIAL INDEMNITY. 

At the last session of Congress, an act ' ' authorizing the Secretary of the Interior to 
survey the lands of the abandoned Fort Assinniboine MiUtary Reservation and open 
the same to settlement, " received the approval of the President February 11, 1915 
(Public, No. 244). 

Section 7 of this act provided in part: 

•'That sections sixteen and thirty-six of the land in each township within said 
abandoned Fort Assinniboine Military Reservation, except those portions thereof 
classified as coal or mineral lands, shall be reserved for the use of the common schools 
of the State of Montana, and are hereby granted to the State of Montana: Provided, 
That the State may, if.it so elects within one year from the date of the passage of this 
Act, accept subject to the reservation in the United States of the coal deposits therein 
the portion of said sections sixteen and thirty-six classified as coal lands, in full satis- 
faction of the grant herein made for common schools: Provided, That for all lands 
lost to the State because classified as coal or mineral indemnity may be taken as 
provided for in sections twenty-two hundred and seventy-five and twenty-two hun- 
dred and seventy-six of the Re\'ised Statutes. ' ' 



lajstds for educatio:n"al purposes. 35 

DEPARTMENTAL DECISIONS. 

In State of Montana v. Fannie Lipscomb, decided April 14, 1915 (not yet reported), 
the department, after a full citation of the authorities, again announced its adherence 
to the conclusion that the grant made by the act of February 22, 1889, must be adminis- 
tered and adjusted under the provisions of the amendatory act of February 28, 1891. 

SPECIAL PLAN OF ADJUSTMENT, BY AGREEMENT, BETWEEN THE STATE AND AGRICUL- 
TURAL DEPARTMENT. 

Memorandum of agreement made and entered into this 23d day of December, 1912, 

between the Department of Agriculture of the United States, through James Wilson, 

the Secretary of Agriculture, and the State of Montana, through Edwin Norris, its 

governor, looking toward a settlement and adjustment of all matters relative to the 

unsurveyed school lands within the national forests in the State of Montana. 

It is agreed between the foregoing parties that the following proposition shall be the 
basis of settlement, the details to be worked out as soon as practicable. 

That as to all unsurveyed school sections included within the national forests in the 
State of Montana, excepting those lost to the State by homestead settlement or which 
have already been relinquished to the United States as a basis for the selection of lieu 
lands, it is agreed that the State shall relinquish her claims and select as lieu lands 
other lands equivalent in acreage and values, lying along and within the present 
boundaries of the national forests in such position that when eliminated therefrom 
all will lie outside the new exterior boundaries of the national forests. 

In order to carry out the proposition above expressed, it is further agreed that a 
representative appointed by the State Land Board of Montana and a representative 
appointed by the Secretary of Agriculture at the earliest possible date shall make, 
with such assistance as may be necessary, an examination upon the ground of the 
lands comprising the unsurveyed school sections to be relinquished and the lands to 
be selected in lieu thereof, and shall report their conclusion to the State land board 
and the Secretary of Agiiculture for final approval. 

In making lieu selections as above provided, it is understood that the State will 
select the equivalent area in several large tracts, some of which will be principally 
valuable for their timber and others for their forage, but that the State may have the 
right to select smaller tracts of not less than one section in any case. 

It is further understood that after the representatives above mentioned have agreed 
upon the selections of lieu lands within the present boundaries of the national forests 
and along the boundaries thereof, as nearly as may be, equivalent in value to the sec- 
tions 16 and 36 surrendered, that the Secretary of Agriculture will recommend an 
Executive order eliminating the lands so selected from the national forests, so that new 
boundaries thereto may be created and the lands so selected by the State be entirelj' 
without the national forests and be subject to the exclusive direction and control of the 
State, provided that the law at that time is such that the lands surrendered by the 
State will become a part of the national forest. 

It is further understood that the salary and expenses of the representative above 
referred to appointed by the State Land Board shall be paid by the State cf Montana, 
and the salary and expenses of the representative appointed by the Secretary of Agri- 
culture shall be paid by the United States Department of Agriculture, and other ex- 
penses involved in making the examination of these areas shall be borne half by the 
State of Montana and half by the Forest Service. 

The undersigned agree to the above proposition and agree to carry them out as far 
as they have official power and authority to do so. 

[seal.] W. M. Hays, 

Acting Secretary of Agriculture. 

[seal.] , Edwin L. Norris, 

Governor of Montana. 

Note. — No exchanges in pursuance of this agreement have yet been effected. 

The State of North Dakota. 

The grant of lands for common schools was made by sections 10 and 11 of the act 
of February 22, 1889 (25 Stat., 676), enabling the States of Washington, Montana, 
South Dakota, and North Dakota to enter the Union. For the terms of the grant see 
State of Washington herein. 

The State was admitted to the Union by proclamation, November 2, 1889. 



36 LANDS FOE EDUCATIOXAL PURPOSES, 

STATE CONSTITUTION. 

Article 9 of the State constitution, section 155: 

"After one year from the assembling of the fii'st legislative assembly the lands 
granted to the State from the United States for the support of the common schools 
may be sold upon the following conditions and no other: No more than one-fourth 
of all such lands shall be sold within the first five years after the same become saleable 
by vii'tue of this section. No more than one-half of the remainder within ten years 
after the same become salable as aforesaid. The residue may be sold at any time 
after the expiration of said ten years. The legislative assembly shall provide for the 
sale of all school lands subject to the provisions of this article. The coal lands of the 
State shall never be sold, but the legislative assembly may by general laws provide 
for leasing the same. The words 'coal lands ' shall include lands bearing lignite coal." 

Section 158: 

"No land shall be sold for less than the appraised value and in no case for less than 
$10 per acre." 

STATE LEGISLATION, 

Section 186, Revised Codes 1899, provides for the manner of sale and — 

"No tract shall be sold for less than its appraised value and in no case for less than 
$10 an acre." 

Section 204, Revised Codes, authorizes execution of deeds of reconveyance to the 
United States to correct errors in adjustment of the grant. 

Section 216, RoAdsed Code of 1899: 

"No more than one-fourth of the common school lands of the State shall be sold 
within the first five years after they become salable under the provisions of sections 155 
of the constitution nor more than one-half of the remainder within ten years after the 
same shall become salable as aforesaid. The residue may be sold at any time after 
the expiration of such ten years: Provided, however, That the coal lands of the State 
shall not be sold, but may be leased under the provisions of any law governing such 
leases. The words 'coal lands' include lands bearing lignite coal." 

Act of March 13, 1901 (Assembly Laws 1901, p. 174) authorizes the lease of: 

"All the common school lands and all other public lands of the State that are not 
of such value as will admit oi appraisal at |10 or more per acre at the time of any 
regular appraisal." 

SPECIAL INDEMNITY. 

By an act approved March 2, 1907, Congress authorized the State of North Dakota 
to select other lands in lieu of lands erroneouslj' entered in sections 16 and 36 within 
certain military reservations as follows: 

'"That the State of North Dakota be, and is hereby authorized to select, in lieu 
of lands embraced in homestead entries made and erroneously allowed prior to the 
passage of this act for lands in sections sixteen and thhly-six, within the limits of 
the abandoned Fort Rice and Fort Abraham Lincoln military reservations, in said 
State, other unappropriated surveyed non mineral public lands of equal area situated 
within the limits of said State, in the manner provided in the Act approved February 
twenty-eighth, eighteen hundred and ninety-one (Twenty-sixth Statutes at Large, 
page seven hundred and ninety-six), entitled 'An act to amend sections twenty-two 
hundred and seventy-five and twenty-two hundred and seventy-six of the Re^dsed 
Statutes of the United^ States providing for the selection of lands for educational 
purposes in lieu of those appropriated for other purposes:' Provided, That such 
selection of lands by said State shall be a waiver of its right to the lands embraced 
in said homestead entries." (34 Stat., 1218.) 

See "General legislation" herein as to character of grant to this State. 

THE STATE OF SOUTH DAKOTA. 

The grant for common schools was made by sections 10 and 11 of the act of February 
22, 1889 (25 Stat., 676), enabling the States of Washington, Montana, South Dakota, 
and North Dakota to enter the Union. For the terms of the grant see State of Wash- 
ington herein. 

The State was admitted to the Union by proclamation November 2, 1889. 

STATE CONSTITUTION, 

Article 8 of the constitution provides, by section 4 : 

"After one year from the assembling of the first legislature, the lands granted to 
the State by the United States for the use of the public schools may be sold upon 



LANDS FOR EDUCATIOlSrAL PURPOSES. 37 

the following conditions and no other: Not more than one-third of all such lands 
shall be sold within the first five years, and no more than two-thirds within the first 
fifteen years after the title thereto is vested in the State, and the legislature shall, 
subject to the provisions of this article, provide for the sale of the same. 

"The commissioner of schools and public lands, the State auditor, and the county 
superintendent of schools of the counties severally, shall constitute boards of appraisal 
and shall appraise all schools land within the several counties which they may from 
time to time select and designate for sale, at their actual value under the terms of 
sale. 

"They shall take care to first select and designate for sale the most valuable lands; 
and they shall ascertain all such lands as may be of special and peculiar value, other 
than agricultural, and cause the proper subdivision of the same in order that the 
largest price may be obtained therefor." 

Section 5: " 

"No lands shall be sold for less than the appraised value, and in no case for less 
than $10 an acre." 

STATE LEGISLATION. 

Section 370, Revised Codes, 1903: 

"Not more than one-third of the lands of any class granted to the State for educa- 
tional or charitable purposes shall be sold within the first five years, and not more 
than two- thirds of such lands shall be sold within the first fifteen years after the date 
of the vesting of title thereto in the State. No more than one-tenth of the lands 
granted by the act of Congress of February eighteenth, eighteen hundred and eighty- 
one, entitled "Ad act to grant lands to Dakota, Montana, Arizona, Idaho, and Wyo- 
ming for university ptirposes," and vested in the State of South Dakota by section 
14 of the act of Congress of February twenty-second, eighteen hundred and eighty-nine, 
entitled "An act to provide for the division of Dakota into two States and enable the 
people of North Dakota, South Dakota, Montana, and Washington to form constitu- 
tions and State governments and to be admitted into the Uniton on an equal footing 
with the original States, and to make donations of the public lands to such States," 
shall be offered for sale in any one year. Subject to the limitations herein expressed 
and contained in the constitution of the State and said acts of Congress, the board 
of school and public lands shall determine from time to time the quantity of lands 
of each class granted which shall be selected, and the quantity of each class which 
shall be selected in each of such counties. The board shall so apportion "the quan- 
tity to be selected that the most valuable lands may first be selected and designated 
for sale." 

Section 374: 

"No land shall be sold for less than the appraised value and in no case for less than 
|10 an acre." 

(Tliis section follows constitutional provision noted above.) 

See also section 34, page 362, Assembly Laws of 1911, where similar provision is made. 

SPECIAL ADJUSTMENT THROUGH AGREEMENT BETWEEN FORESTRY AND STATE. 

In order to reach an amicable agreement between the Federal Government and the 
State of South Dakota for the disposition of such school sections as are situated within 
the Black Hills and Harney Forests, in the State of South Dakota, the following agree- 
ment was entered into by the Forest Service, United States Department of Agricul- 
ture, under the approval of the Secretary, and the commissioner of schools and public 
lands for the State of South Dakota: 

Memorandum of agreement between the Bureau of Forestry of the Department of 
Agriculture of the United States, through Mr. Gifford Pinchot, Forester, and the 
State of South Dakota, through its commissioner of schools and public lands, 0. C. 
Dokken, and its attorney general, S.W. Clark, looking to a settlement and adjust- 
ment of matters of difference relative to school lands in the Black Hills Forest 
Reserve. 
It is agreed between the foregoing parties that the following proposition shall be 

the basis of settlement, the details to be worked out as soon as practicable: 

1. As to the school sections, understood to be four in number, to which title vested 
in the State by reason of survey prior to the creation of a national forest: These will 
remain the property of the State and are not affected by this agreement. 

2. As to all school sections not surveyed prior to the creation of the national forest: 
All the lands included therein, excepting those lost to the State by homestead settle- 
ment or entry, the State agrees to relinquish her claims and to select as lieu lands 
other lands equivalent in acreage and values, lying along and within the present 



38 LANDS FOE EDUCATIONAL PURPOSES. 

boundaries of the national forest in such, position that when eliminated therefrom all 
will lie outside the new exterior boundaries of the national forest. 

3. That as to acreage of lands that have been entered or settled upon bj^ homestead 
claimants, consisting so far as present known of about 40 entries, the question whether 
the State may select other lands in lieu thereof from national forest lands in the same 
manner as indicated in subdivision 2 hereof is left open for further consideration. 

In order to carry out the purposes above expressed it is further agreed that a board 
shall be constituted composed of one representative appointed by the State and one 
by the Forester, the two to select a third, which board shall, at the earliest practicable 
date, make an examination upon the ground of the lands comprising the school sec- 
tions to be relinquished and the lands to be selected in lieu thereof, the decision of 
said board to be final upon the question of equivalency. 

In making lieu selections, as above provided, it is understood that the State may 
have the right to select this equivalent area in one or more large tracts or many smaller 
tracts, not less than one section in any case. 

It is further understood that, after the board above mentioned has agreed upon the 
selections of lieu lands within the present boundaries of the reserve and along' the 
boundaries thereof as nearly as may be equivalent in value to section 16 and 36 sur- 
rendered, that the Forester will use his best efforts to secure an executive order elimi- 
nating the lands so selected from the forest reserve, so that new boundaries thereof 
may be created and the lands so selected by the State be entirely without the forest 
reserve and be subject to the exclusive direction and control of the State. 

The undersigned agree to the above proposition and agree to carry them out so far as 
they have official power and authority so to do. 

January 4, 1910. 

GiPFORD Pinch OT, 

Forester. 

0. C. DOKKEN, 

Commissioner of Public Lands of South Dakota. 

S. W. Clark, 
Attorney General for the State of South Dakota. 

This agreement was forwarded to the Representatives to Congress from South 
Dakota for consideration and comment, and received the following indorsement: 

Having been in conference and taking into consideration the above agreement, we 
hereby approve the same and agree to assist in carrjdng out these provisions as far as 
jur official power extends. 
January 17, 1910. 

CoE I. Crawford, 
Robert J. Gamble, 

Senators. 
Eben W. Martin, 
Chas. H. Burke, 

Representatives. 

In accordance with said agreement such action was taken and had, with the ap- 
proval of the Secretary of the Interior, that the boundaries of said national forests 
were so modified by proclamation of the President February 15, 1912 (37 Stat., 1729), 
as to permit the State to receive by certification to the present time, 11,577.69 acres. 

departmental decisions. 

The department held, in South Dakota v. Riley (34 L. D., 657), that the State takes 
no title to any particular land until it is identified by siu-vey, and prior to such iden- 
tification the grant may be wholly defeated by settlement, leaving the State to assert 
its right for indemnity under the amendatory act of February 28, 1891. This was fol- 
lowed in the case of South Dakota v. DeHcate (34 L.- D., 717). 

The department held, however, in special instructions (35 L. D., 158), that the title 
of the State under the grant of 1889, is not affected by the inclusion of the land within 
a forest reservation prior to survey; that the State, if it does not desire to await ex- 
tinguishment of the forest reserve, may select other lands in lieu of those included 
therein. This case cites the decision in the Riley case, and declares that it was not 
intended to hold therein that the establishment of a forest reservation, prior to survey, 
defeats the title of the State. 

Again, in the case of the Black Hills National Forest (37 L. D., 469), it was said by 
the department that if the national forest is a permanent reservation, within the 
meaning of section 10 of the granting act, the school sections therein are, by the terms 



LANDS rOR EDUCATIONAL PURPOSES. 39 

of said act excepted from the grant for school purposes; but if on the other hand the 
national forest is only a temporary reservation within the meaning of that act, the 
title of the State will not attach so long as the reservation exists, in view of the fact 
that the lands were unsurveyed at the time the reservation was established. 

THE STATE OF IDAHO. 

The grant for the benefit of common schools was made by sections 4 and 5 of the act 
of admission, July 3, 1890 (26 Stat., 215), as follows: 

"Sec. 4. That sections numbered sixteen and thirty-six in every township of said 
State, and where such sections or any part thereof, have been sold or otherwise dis- 
posed of by or under the authority of any act of Congress, other lands equivalent 
thereto, in legal subdivisions of not less than one-quarter section, and as contiguous 
as may be to the section in lieu of which the same is taken, are hereby granted to said 
State for the support of common schools, such indemnity lands to be selected within 
said State in such manner a^ the legislature may provide, with the approval of the 
Secretary of the Interior. *-' 

"Sec. 5. That all lands herein granted for educational purposes shall be disposed 
of only at public sale, the proceeds to constitute a permanent school fund, the interest 
of which only shall be expended in the support of said schools. But said lands may, 
under such regulations as the legislature shall prescribe, be leased for periods of not 
more than five years, and such lands shall not be subject to preemption, homestead 
entry, or any other entry under the land laws of the United States, whether surveyed 
or unsurveyed, but shall be reserved for school purposes only. 

"Sec. 13. That all mineral lands shall be exempted from the grants by this act. 
But if sections sixteen and thirty-six, or any subdivision, or portion of any smallest 
subdivision thereof in any township shall be found by the Department of the Interior 
to be mineral lands, the said State is hereby authorized and empowered to select, in 
legal subdivisions, an equal quantity of other unappropiiated lands in said State in 
lieu thereof, for the use and the benefit of the common schools of said State. 

"Sec. 14. That all lands granted in quantity or an indemnity by this act shall be 
selected, under the direction of the Secretary of t£ie Interior, fi'om the surveyed, unre- 
served, and unappropriated public lands of the United States within the limits of the 
State entitled thereto. And there shall be deducted from the number of acres of land 
donated by this act for specific objects to said State the number of acres heretofore 
donated by Congress to said Territory for similar objects." 

STATE CONSTITUTION. 

Section 8 of article 9 of the constitution provides: 

"It shall be the duty of the State board of land commissioners to provide for the 
location, protection, sale, or rental of all the lands heretofore, or which may hereafter 
be, granted to the State by the General Government, under such regulations as may 
be prescribed by law, and in such manner as will secure the maximum possible amount 
therefor: Provided, That no school lands shall be sold for less than $10 per acre. No 
law shall ever be passed by the legislature granting any privileges to persons who may 
have settled upon any such public lands, subsequent to the survey thereof by the 
General Government, by which the amount to be derived by the sale, or other dis- 
position of such lands, shall be diminished, directly or indirectly. The legislature 
shall, at the earliest practicable period, provide by law that the general grants of land 
made by Congress to the State shall be judiciously located and carefully preserved 
and held in trust, subject to disposal at public auction for the use and benefit of the 
respective objects for which said grants of lands were made, and the legislature shall 
provide for the sale of said lands from time to time for the sale of timber on all State 
lands and for the faithful application of the proceeds thereof in accordance with the 
terms of said grants: Provided, That not to exceed twenty-five sections of school lands 
shall be sold in any one year, and to be sold in subdivisions of not to exceed one hun- 
dred and sixty acres to any one individual, company, or corporation." 

STATE LEGISLATION. 

Section 1579, Revised Codes, directs the manner in which State lands shall be sold 
and declares: 

"No land shall be sold for less than its appraised -value nor for less than $10 per 
acre." 

Section 1583 makes provision for the sale of State lands in conformity with the 
classification of farm units where Federal irrigation works justify such action. 



40 LANDS FOE EDUCATIONAL PURPOSES. 

Act of March 13, 1909 (Assembly Laws of 1909, p. 331), authorizes the State land 
board to enter into contracts with the Secretary of the Interior with respect to the 
irrigation of State lands adjacent to national irrigation projects. 
Senate concurrent resolution No. 8: 
"Be it resolved by the Legislature of the State of Idaho : 

"Whereas, by an act dated July third, eighteen hundred and ninety, Congress 
granted to the State of Idaho about three million acres of public lands, including 
sections sixteen and thirty-six in every township of the State, for the support of 
common schools and in aid of various public institutions, with the right, where sections 
sixteen and thirty-six or any part thereof had been sold or otherwise disposed of by or 
under the authority of any act of Congress, to select other lands equivalent thereto, 
in legal subdivisions of not less than one quarter section and as contiguous as may be 
to the section in lieu of which the same was taken ; and 

" Whereas, by an act dated August eighteenth, eighteen hundred and ninety-four. 
Congress granted to the State of Idaho the right to apply for the survey and with- 
drawal of townships of public lands then remaining unsurveyed, and that such town- 
ships should be reserved upon the filing of the application for said survey from any 
adverse appropriation by settlement or otherwise, except under rights that might be 
found to exist of prior inception, for a period to extend from such application for 
survey until the expiration of sixty days from the date of the filing of the township 
plat of survey in the proper district land office, and pursuant to said act of Coiigress 
the State of Idaho made application for the survey of a large number of townships of 
public lands within the State of Idaho for the pui-pose of selecting the quota of lands 
donated the State; and 

"Whereas the President of the United States has by proclamation established certain 
forest reserves within the State of Idaho embracing more than twenty-eight per cent 
of the total area of the State, including sections sixteen and thirty-six aforesaid, and 
the Department of the Interior has by rules and regulations denied the right of the 
State of Idaho to perfect its selections of public lands in townships now included in 
the forest reserves, but which were not included within the forest reserves at the 
time of the State's application for the survey thereof; and 

"Whereas approximately one million acres of the lands so donated to the State of 
Idaho have not been selected and there are not sufficient unappropriated public lands 
within the State of Idaho outside such forest reserves of the value of $10 per acre to 
enable the State to make selection thereof; and 

"Whereas the State board of land commissioners of Idaho have heretofore pre- 
tended to renounce the title of the State of Idaho to certain sections sixteen and thirty- 
six, amounting to more than two hundred thousand acres, and announces its intention 
of using such relinquished lands as a basis for making selections of other public lands, 
and such action of the State board of land commissioners was not authorized by any 
act of the Legislature of the State of Idaho and was in violation of the express terms 
of the admission bill and the constitution of Idaho : Therefore be it 

"Resolved, That the State of Idaho hereby proclaims, declares, and asserts its owner- 
ship and title to all sections sixteen and thirty-six in every township granted by the 
United States to the State of Idaho and not heretofore disposed of by the State, in 
accordance with the donation act and the constitution and laws of the State of Idaho: 
Be it further 

"Resolved, That the State board of land commissioners is hereby required to insist 
upon the right of the State to complete and perfect the State's selection pf public 
lands in the forest reserves where the State made application for survey prior to the 
creation of such forest reserves, and that the board take all necessary proceedings to 
establish such right in the State : Be it further 

"Resolved, That the Congress of the United States is hereby memorialized to re- 
quire the Department of the Interior to ascertain what portions of sections sixteen and 
thirty-six, or any subdivision, or portion of any smallest subdivision, thereof, in any 
township, may be mineral lands, and to certify the same to the State of Idaho sothat 
the State may select, in legal subdivisions, an equal quantity of other unappropriated 
lands in said State in Ueu thereof for the use and benefit of the common schools of 
said State: Be it further 

"Resolved, That the representatives of Idaho in Congress be and they are hereby 
directed to aid the State board of land commissioners in establishing the right of the 
State to complete and perfect its title to public lands in forest reserves initiated by 
filing an application for the survey thereof: Be it further 

"Resolved, That the Secretary of State forthwith transmit a copy of this resolution 
to each Representative in Congress from the State of Idaho: Be it further 

"Resolved, That the State board of land commissioners and the legal department 
of the State of Idaho is hereby advised to take such steps as will bring about an early 



LANDS FOR EDUCATIONAL PURPOSES. 41 

determination by the Supreme Court of the United States of the question of the 
rights of the State to the sections sixteen and thirty -six included within forest re- 
serves as hereinbefore stated." 

Passed senate March 2, 1909. 

Passed house March 4, 1909. 

(Session Laws of 1909, p. 442.) 

Act of February 8, 1911 (Session Laws 1911, p. 16): 

^'Be it enacted by the Legislature of the State of Idaho: 

"Section 1. That the State board of land commissioners be. and is hereby, authoi'- 
ized, empowered, and directed to judiciously ascertain and locate the general grants of 
land made by Congress to the State of Idaho, and when said board shall find that sec- 
tions sixteen and thirty-six, or any part or parts thereof, in every township of the 
State were sold or otherwise disposed of by or under the authority of any act of Con- 
gress prior to July third, eighteen hundred and ninety, on the admission of the State 
of Idaho into the Union, or said lands are found by the Secretary of the Interior, or 
the Secretary of Agriculture when necessary, select from the surveyed, unreserved, and 
unappropriated lands of the ITnited States within the limits of the State of Idaho other 
lands equivalent thereto in area and value in legal subdivisions of not less than 
one-quarter section and as contiguous as may be to the section in lieu of which the 
same is taken. 

"Sec. 2. That when the State board of land commissioners shall ascertain that sec- 
tions sixteen and thirty-six, or any part thereof, granted to the State have been 
actually settled iipon prior to the survey thereof by the General Government and 
are occupied by bona fide settlers claiming title thereto under the homsetead laws 
of the United States, then the said board shall be, and is hereby, authorized and 
empowered in its discretion, by and with the approval of the Secretary of the Inte- 
rior, or the Secretary of Agriculture when necessary, to select from the surveyed, 
unreserved, and unappropriated public lands of the United States within the State of 
Idaho other lands equivalent in area and value in legal subdivisions and as contigu- 
ous as may be to the section in lieu of which the same is taken. 

"Sec. 3. That when the State boai'd of land commissioners shall ascertain that sec- 
tions sixteen and -thirty-six, or any part or parts thereof, granted to the State are or 
have been lawfully included and embraced within any forest or other reservation 
established under or by authority of any act of Congress, then the said board shall, 
by and with the approval of the Secretary of the Interior, or the Secretary of Agri- 
culture when necessary, select from the surveyed, unreserved, and unappropriated 
public lands of the United States within the limits of the State of Idaho other lands 
equivalent thereto in area and value in legal subdivisions and as contiguous as may 
be to the section in lieu of which the same is taken: Provided, That if the board shall, 
upon examination or otherwise, determine that any lands owned by the State in such 
forest or other reservation borders on or in the vicinity of any lake, waterfall, spring, 
or other naturally advantageous site, or any natural cusiosity, or that for any other 
cause said lands are or in the future may "have particular value to the State, then 
the board shall not certify such lands to the Secretary of the Interior as a basis for 
indemnity selections in lieu thereof, but the State of Idaho shall retain its title in 
said lands. 

"Sec. 4. That when the State board of land commissioners ascertain that what 
would be, if surveyed, sections sixteen and thirty-six, or any part or parts thereof, 
granted to the State, falls upon any lake or navigable river and that the quantity 
of land intended to be conveyed as sections sixteen and thirty-six is lost to the State 
thereby, it shall be the duty of said board to apply to the Secretary of the Interior 
for permission to select indemnity lands in lieu of the loss in quantity so sustained 
by the State. 

"Sec. 5. That all relinquishments of State lands heretofore made by the State 
board of land commissioners as a basis for the selection of indemnity lands in lieu 
thereof, and all selections of indemnity lands in lieu of lands so relinquished by the 
State, heretofore made by the State board of land commissioners, be, and the same 
are hereby, adopted, ratified, approved, and confirmed as of the date of such relin- 
quishment and selection; and the State of Idaho hereby expressly relinquishes its 
title to all lands so relinquished by the said board : Provided, The selection of the 
indemnity lands in lieu thereof be approved by the Secretary of the Interior, and 
said lands so selected are certified for patent to the State of Idaho. 

"Sec. 6. That the State board of land commissioners be, and the same is hereby, 
authorized and empowered by and with the approval of the Secretary of the Interior 
to relinquish the selections by the State of Idaho of those lands in township forty- 
four north, range two east, and township forty-four north, range 3 east, of Boise 
meridian, in Idaho, where the claim of the State thereto conflicts with the claims of 
certain settlers thereto, and such settlers have a prior equitable right thereto as found 



42 LANDS FOE EDUCATIOIsrAL PUEPOSES. 

by a commission appointed under House joint resolution Numbered Ten, passed by 
the Senate March second, nineteen hundred and nine: Provided, That the relinquish- 
ment of such selections shall not be made until the right of the State to select other 
indemnity lands in lieu thereof shall be recognized and announced by the Secretary 
of the Interior: And provided further , That the State shall not relinquish its title to 
any such lands when such relinquishment would inure to the benefit of any scrip 
holder or claimant. 

"Sec. 7. An emergency existing, this act shall take effect and be in force from 
and after its passage and approval." 

Act of March 4, 1911 (Session Laws of 1911, p. 85): 

"Be it enacted by the Legislature of the State of Idaho: 

"Section 1. That the State of Idaho hereby accepts the provisions of sections 
twenty-two hundred and seventy-five and twenty-two himdred and seventy-six of 
the Re\T.sed Statutes of the United States as amended by an act of Congress February 
twenty-eighth, eighteen hundred and ninety-one (Twenty-first Statutes at Large, 
page seven hundred and ninety-six), and the rights and privileges granted to States 
and Territories by said act. 

"Sec. 2. That all relinquishments of State lands in place heretofore lawfully made 
by the State board of land commissioners as a basis for the selection of indemnity 
lands in lieu thereof, and all selections of indemnity lands in lieu of lands so relin- 
quished by the State board of land commissioners, are hereby ratified, approved, 
adopted, and confirmed by the State of Idaho as of the date of such relinquishments 
and selections. 

"Sec. 3. That an emergency' existing therefor, this act shall take effect and be in 
force from and after its passage and approval." 

Senate concurrent resolution No. 5 (Session Laws 1911, p. 793), recites again the 
grant of school lands to Idaho; the provisions of the act of August 18, 1894; the estab- 
lishment of certain forest reserves within the State; the consequent loss to the State 
of the school lands to the extent of a million acres or more; the stated annoimcement 
that the Secretary of the Interior is about to promulgate a ruling that the State shall 
be no longer allowed to use unsurvej^ed school sections in forest and other reserves 
as a base for selection of other lands; the consequent loss to the school fund of the 
State; for which reasons — 

"It is therefore resolved that the Representatives of Idaho in Congress are directed 
to aid the State land board in bringing about an adjustment of the conditions now 
existing between the Government and the State with respect to said school grant 
in order that Idaho may enjoy the full benefit of its grant, and that a committee be 
appointed consisting of the attorney general of the State, a member of the senate, 
and a member of the house, to confer with the Secretary of the Interior, and thus 
secure a recognition of the rights of the State." 

senate joint memorial no. 5. 

The State Legislature of Idaho, at its present session, enacted the following joint 
memorial : 

''Be ii resolved by the Senate of the State of Idaho {the House of Representatives 
concurring: 

"That the Congress of the United States be memorialized as follows: 

"WTiereas the State of Idaho has now pending with the Department of the Interior 
of the Federal Government applications for the clear-listing of approximately five 
hundred thousand acres of land which the State of Idaho has selected either by way 
of completing the original grants of land made to it by the Federal Government for 
various purposes or by way of lieu land selections which the State of Idaho has made 
in lieu of sections sixteen and thirty-six in each township within the State of Idaho, 
and which the said State has lost by reason of their inclusion within national forests, 
or for other reasons; and 

"WTiereas the State of Idaho was permitted by the Federal Government to make 
these selections in the belief that it would be speedily enabled to obtain title thereto, 
and is now spending large sums of money each year for the purpose of protecting from 
fire the timber growing upon such selected lands, and which timber is now ripe and 
ready for the market: Now, therefore, be it 

"Resolved, That the Congress of the United States is hereby memorialized to enact 
such legislation as may be necessary to enable the President of the United States and 
the Department of the Interior to complete the clear listing and patenting to the State 
of Idaho, of the lands selected as aforesaid; and be it further 

"Resolved, That a certified copy of this memorial be sent to each of the Members 
of the congressional delegation from this State in Congress, with the request that they 
employ their best efforts to secure action in the premises." 



LANDS FOR EDUCATIONAL PUEPOSES. 43 

SPECIAL AGREEMENT. 

In pursuance of a resolution adopted by the State land board July 11, 1911, a memo- 
randum of agreement entered into under date of October 4, 1911, between the Secretary 
of the Department of Agriculture and the governor of the State of Idaho, and a supple- 
mental agreement of December 10, 1912, between the Forester, the Assistant Forester, 
the governor of Idaho, and the State land commissioner of Idaho, a special plan of 
adjustment as to school lands within national forests was adopted, and the President 
of the United States, by proclamation of June 4, 1912 (37 Stat., 1743), and March 3, 
1913 (37 Stat., 1777), modified the boundaries of certain national forests in the State 
of Idaho, to permit of the consummation of said plan, under such agreements, but no 
certifications have been made under said agreement. 

DECISIONS OF THE COURTS. 

Balderston v. Brady (17 Idaho, 567). This suit was commenced by a taxpayer who 
asked for a writ of prohibition against the threatened action of the State board of land 
commissioners to restrain them from relinquishing the right and title of the State of 
Idaho to certain lands theretofore selected by the board under the land grant made by 
the Federal Government to the State of Idaho. 
The court said : 

"Now there can be no question or doubt that the 'direction, control, and disposition 
of the public lands of the State ' is vested in the State board of land commissioners. It 
is equally clear and certain that tMs power must be exercised 'under such regulations 
as may be prescribed by law.' Both of the foregoing sections of the constitution con- 
tain the same provision as to this limitation of power. The legislature is prohibited, 
however, from passing any law that would authorize a sale of school lands for less than 
$10 per acre or any sale or disposition other than 'at public auction.' * * * ^ 

"The constitution of this State was framed by the constitutional convention 11 

months prior to the admission of the State into the Union, and it was ratified by the 

people some 8 months before the admission. Notwithstanding this fact, the people at 

that early date incorporated into the fundamental law of the State sections 7 and 8 of 

article 9, heretofore quoted, and thereby forbade the legislature authorizing any sale 

of land for less than $10 per acre or ever 'granting any privileges to persons who may 

have settled upon such public lands, subsequent to the survey thereof by the General 

Government, by which amount to be derived by the sale or other disposition of such 

lands be diminished, directly or indirectly.'' It was provided that the legislature 

should enact laws Avhereby the general grants of lands made by Congress to the State 

should be 'judiciously located and carefully preserved and held in trust' for the several 

! purposes and objects for which they were granted. The admission bill followed the 

i provisions of the constitution, and by sections 8 and 11 thereof it is provided that 

j none of the lands granted by Congress to the State should ever be sold for less than $10 

I per acre. It needs only to be called to mind to be at once apparent that the legislature 

I can not authorize the land board or anyone else to do any act with reference to State 

I lands that is forlndden by the constitution. Any gift of school or other State lands or 

relinquishment of the State's title is in violation of the fundamental laws of the State, 

I and would be void." 

I Proceeding further the court incidentally discussed the character of the school grant 
made to the State and points out how widely it differs from the ordinary grant, and 
i concludes, after distinguishing the decision of Heydenfelt v. Daney, that it is a grant 
j in praesonti notwithstanding the fact that it includes both surveyed and unsurveyed 
' land. 

"This discussion, however, is collateral and incidental only to the main point with 
which we are here interested. Whether the Government through any of its agencies 
has the power to reclaim the school sections granted by the admission bill is imma- 
terial so far as the Government is concerned, because Congress by the act of August 18, 
1894 (28 Stat. L., 372), and other acts dealing with the public domain, has amply 
I authorized the Interior Department to grant indemnity and lieu lands to the States 
for any and all lands lost or relinquished by the State. (Op. Atty. Gen. of Sept. 15, 
1909; decision Secretary Interior in Heirs of Irwin v. Ewing and State of Idaho, filed 
j subsequent to Sept. 15, 1909, and not yet ofiicially reported.) The real question then 
I recurs: Has the State authorized the relinquishment of sections 16 and 36 and has the 
I State land board the authority to relinquish the State's right to such lands? But one 
! answer can be given to this query. The authority for such an act can not be found 
in either the constitution or statute. It is therefore perfectly sale to say that no such 
power exists. We have hereinbefore said that the board must act under the law. 
It must find authority in the constitution and statute for its acts. No such authority 
as claimed exists, and it is clear that the State land board has no power to relinquish 



44 LANDS FOR EDUCATIONAL PURPOSES. 

or surrender the right or title of the State of Idaho to any of its school lands. If the 
State's title to any of these lands comprising sections 16 and 36 is questioned or denied 
by the department, then the duty of the State to secure an adjudication of the matter 
by the Federal Supreme Court is plain and unmistakable." 

On motion to modify the former judgment in this case (18 Idaho, 238) the court said, 
in considering the character of the title under which Idaho held its school lands: 

"In view of what we previously said it is perhaps proper to add here that it is clear 
to us, and has been admitted by the learned counsel on both sides, that in order to 
reach the conclusion that the State took no title under the admission bill (sec. 5) to 
sections 16 and 36, as construed by Secretary Hitchcock in South Dakota v. Delicate 
(34 L. D., 717), and South Dakota v. Riley (34 L. D., 657), it is necessary to eliminate 
the word 'unsurveyed' and give to it absolutely no meaning or significance whatever. 
Whether the State has title or not, and whatever the character of that title may be, 
still it is apparently within the power of the Government to prevent the State taking 
possession or acquiring any substantial benefits therefrom by withholding the public 
survey and thereby depri^dng the State of the evidence and means of proof of the 
identity of those sections. * * * 

"The question as to when a school section has been 'lost,' so far as the State is con- 
cerned, is one to be determined by the Government in every case where the State 
makes application for lieu lands to reimburse such 'loss.' If the Government, there- 
fore, holds that an unsiu'veyed school section, included in a forest reserve, or one 
which has been settled upon prior to survey, is thereby ' lost ' to the State, it is then 
the unmistakable duty of the department to grant the State 'Lieu' land for such 'loss' 
(U. S. Comp. Stats., 1901, p. 1483; Idaho admission bill, sec. 4), and the power of the 
board to take title to lands in 'Ueu' of such loss as a base is beyond doubt." 

The opinion of the Attorney General, referred to in the original decision, is reported 
in 27 Opinions, page 605, followed by a later opinion appro^dng and extending the 
former, in 28 Opinions, 587, wherein it was held generally, that the right of the State 
of Idaho to make lieu selections pursuant to proceedings under the act of August 18, 
1894, was defeated by the establishment of a forest reservation prior to any selections 
on behalf of the State. 

Rogers v. Hawley (19 Idaho, 751). This case arose on a petition for a writ to restrain 
the State board of land commissioners from relinquishing the State's right to a certain 
section 36. The court thus states the cause of action: 

"It is alleged that section 36, township 24 north, range 20 east, Boise meridian, is 
unsurveyed, but that when the survey is extended over the same, it will be section 36, 
according to the Government siu'vey, and will therefore fall within the grant made 
to the State under the Idaho admission bill, whereby the United States granted to 
the State of Idaho every section 16 and 36 within the State for common school pur- 
poses. It is alleged that the State board of land commissioners threaten and are 
proceeding to assign and relinquish this section as a base for and in lieu of the selection 
of a like quantity of surveyed land, and this proceeding questions and disputes the 
power and authority of the board to make a relinquishment of an unsurveyed school 
section and take in lieu thereof sm'veyed lands. 

"It is also alleged by the second cause of action that the State board of land com 
missioners in the year 1905 made a relinquishment and assignment of an unsurveyed 
school section, and took in lieu thereof section 14, township 4 north, range 41 east, 
Boise meridian, in Fremont County, and which latter section the land board now 
proposes to sell in the manner provided by law for the sale of school lands. 

"The only question that requires our consideration in this case is the power and 
authority of the State land board to assign as a base for lieu land selections sections 
16 and 36 in a forest reserve, or in any other part of the unsurveyed public domain 
within the State. In Balderston v. Brady (17 Idaho, 567; 107 Pac, 493; 18 Idaho, 238; 
108 Pac, 272), this court considered the power of the board to make a relinquish- 
ment of lieu land selections in favor of settlers, and held that the board had no such 
power or authority. That decision was based on the provisions of sections 7 and 8 
of article 9 of the constitution, which vests in the State land board the 'direction, 
control, and disposition of public lands of the State, under such regulations as may 
be prescribed by law,' subject, however, to the limitations that no school land should 
be sold for less than §10 per acre, and that the lands received from the land grants 
should be 'subject to disposal at public auction,' etc. The case at bar raises the 
question alone of the power and authority of the land board to exchange the right, 
title, or interest of the State in and to unsurveyed school sections for a like area of 
surveyed and segregated land." 

The coiu-t then calls attention to the act of the State legislature of February 8, 1911 
(Session Laws, p. 16), prescribing certain powers and duties of the State land board, 
in relation to the location, relinquishment, selection, and exchange with the National 



LANDS FOR EDUCATIONAL PURPOSES. 45 

Government of certain lands granted to the State by the General Government, adopt- 
ing, ratifying, and approving the action of the State board in relinquisliing certain 
State lands and selecting lands in lieu thereof; also to the act of March 4, 1911 (Ses- 
sion Laws, p. 85), accepting the provisions of sections 2275 and 2276 of the Revised 
Statutes of the United States, as amended by the act of Congress approved February 
28, 1891 (21 Stat., 796), and the rights and privileges granted thereby, and ratifying 
and approving the actions of the State board of land commissioners under said act of 
Congress. 

The court observes that counsel on both sides have addressed their chief argument 
to the question of the character of title the State acquires to its school lands under 
its grant, and remarks: 

"As we view the question in the light of the recent acts of the legislature, it is not 
necessary or important that we consider the character or nature of the title the State 
has to unsurveyed sections 16 and 36 or any such sections as may have been settled 
upon prior to the survey thereof. In the first place it is admitted on both sides that 
the State took some kind of a title or equity under sections 4 and 5 of the admission 
bill to every section 16 and 36 within the State. Whether it be a title, absolute and 
indefeasible, or a mere inchoate right or 'floating equity' will make no difference 
with the conclusion we reach in this case, for the reason that the case does not in- 
volve a mere naked relinquishment of the State's right and interest, but it rather 
involves an exchange of unsurveyed, unidentified school sections for 'lands equiva- 
lent in area and value' to the sections in lieu of which the surveyed lands are taken. 
The board proposes to avail itself of the authority conferred by senate bill 47 (act of 
Feb. 8) and exchange the State's right in and claim to a certain unsurveyed and un- 
identified section 16, for a section that has been surveyed and of which the State can 
get immediate possession. There is no dispute but that the act in question confers 
the authority the board proposes to exercise, and if it is not in conflict with the State 
constitution, there can be no legal objection to the action the board proposes to take. 
If senate bill 47 is not valid it must be because it is in conflict with sections 7 and 8 
of article 9 of the constitution." 

The court then cites those sections at length, and in connection therewith considers 
the provisions of the State act of February 8, holding: 

"This statute certainly does not authorize or direct a sale of unsurveyed sections 
16 and 36, and is not, therefore, obnoxious to the constitution on the ground that it 
authorizes a sale of school lands for less than $10 per acre, or that it authorizes a dis- 
posal ' of State lands in a manner other than 'at public auction.' It does not authorize 
the unqualified surrender or giving away State lands, for the reason that it requires 
the board to secure title to 'lands equivalent in area and value in legal subdivisions,' 
etc., as a condition precedent to a complete surrender of the State's title and interest 
in and to the unsurveyed sections so released. This statute does not authorize the 
relinquishment of a school section without the State receiving an equivalent therefor 
in the same kind of property, namely, lands equal in area and value to those released . 
After the transaction is complete, the State will have a fee simple title to surveyed 
lands equivalent in area and value to the unsurveyed lands exchanged therefor. 
The State will still have the same amount of land that it had in the first place, and 
it will be sm-veyed and identified. * * * 

"We are of the opinion that senate bill 47 is the result of a constitutional exercise 
of the legislative power to regulate the procedure of the State land board in its dealing 
with State lands, and in prescribing the manner and method in which it shall acquire 
and perfect title to State lands and enter into actual possession and enjoyment of 
such property for the use and benefit of the State. This is a very different question 
from what it would be if the relinquishment were without consideration and amounted 
to an unqualified 'disposal' or alienation of the lands relinquished or released, and 
in this respect the present case differs essentially and vitally from the case of Balder- 
ston V. Brady." 

The objection that the relinquishment under question was made prior to the passage 
of either the act of February 8, or March 4, 1911, and therefore without color of author- 
ity, was taken up by the court and disposed of by calling attention to the fact that 
both of these acts of the State legislature ratified previous i-elinquishments executed 
by the State board of land commissioners. 

United States v. Bonners Ferry Lumber Co. (184 Fed. Rep., 187). This case 
involved the construction of the school grant made by the Idaho enabling act of July 
3, 1890 (26 Stat., 215). 

Sections 4 and 5 of the act were quoted by the court. Without deciding the ques- 
tion that was raised, whether prior to survey of the land the State acquires a vested 
interest, the court said, speaking of the right of the State prior to survey: 

"Even if it be assumed that the United States has not the legal right to convey the 
land to third persons, or, by including them in reservations, permanently withheld 



46 LANDS FOR EDUCATIONAL PURPOSES. 

them from the State, it must be held at least that until the lands are surveyed it 
retains the legal title, and that the title of the State is therefore not complete." 

Thus finding, it was held that, prior to such survey, the State could not grant any 
authority to remove timber from school sections, nor prevent the United States from 
recovering the value of timber so removed. 

See also A-zcusnaga Bros. v. Corta (115 Pac. Rep., 18, Idaho Supreme Court). 

DECISIONS OF THE DEPARTMENT. 

In Thorpe v. The State of Idaho (42 L. D., 15), the decision of the Supreme Court 
of the State of Idaho in Balderston v. Brady (107 Pac. Rep., 493) to the effect that 
sections 16 and 36 within Indian or other reservations, whether surveyed or unsur- 
veyed, were not available as bases for school indemnity selections, was noted, the 
suspension thereafter, of such exchanges by the department, the subsequent acts of 
the State legislatui'e to correct the situation, the decision of the supreme court of the 
State considering these enactments, in the case of Rogers v. Hawley (115 Pac. Rep., 
687), declaring that all objection to making these exchanges had now been removed, 
whereupon the department reaffirmed its former decisions as to the validity of such 
selections, and directed the adjustment to proceed accordingly. 

In The Heirs of Irwin v. The State of Idaho (38 L. D., 219), the department held that 
an application by the State for a survey, under the act of August 18, 1894 (28 Stat., 
394), does not create any such preferential right of selection on behalf of the State 
as will prevent the subsequent inclusion of the lands within a national forest. This 
decision was adhered to, on motion for re\T.ew, February 1, 1911 (39 L. D., 482). 

The State of Wyoming. 

The grant of school lands to this State was made by the act of admission, July 10, 
1890 (26 Stat., 222). 

In section 2, fixing the boundaries of the State, and providing for the Yellowstone 
National Park, it is said : 

' ' The said State shall not be entitled to select indemnity school lands for the six- 
teenth and thirty-sixth sections that may be in said park reservation as the same is 
now defined or may be hereafter defined." (See 27 L. D., 25.) 

Section 4: 

"That sections numbered sixteen and thirty-six in every township of said proposed 
State, and where such sections, or any parts thereof, have been sold or otherwise dis- 
posed of by or under the authority of any act of Congress, other lands equivalent 
thereto, in legal subdi\isions of not less than one-quarter section, and as contiguous 
as may be to the section in Heu of which the same is taken, are hereby granted to said 
State for the support of common schools, such indenmity lands to be selected within 
said State in such manner as the legislatm'e may provide, with the approval of the 
Secretary of the Interior: Provided, That section six of the act of Congress of August 
ninth, eighteen hundred and eighty -eight, entitled 'An act to authorize the leasing 
of the school and university lands in the Territory of Wyoming, and for other pur- 
poses, ' shall apply to the school and university indemnity lands of the said State of 
Wyoming so far as applicable." 

Section 5 : 

"Thatall lands herein gi'anted for educational purposes shall be disposed of only 
at pubUc sale, the proceeds to constitute a permanent school fund, the interest of 
which only shall be expended in the support of said schools. But said lands may, 
under such regulations as the legislatm-e shall prescribe, be leased for periods of not 
more than five years, in quantities not exceeding one section to any one person, or com- 
pany; and such land shall not be subject to preemption, homestead entry, or any other 
entry under the land laws of the United States, whether smveyed or unsiuveyed, but 
shall be reserved for school purposes only." 

In section 8, dealing with university lands, it is provided that the minimum price 
of said lands shall be $10 per acre. 

Again in section 11, providing specific grants of land in quantity for the State, a 
provision is made: 

"That none of the lands granted by this act shall be sold for less than |10 per acre." 

Section 13: 

"That all mineral lands shall be exempted from the grants made by this act. But 
if sections sixteen and thirty-six, or any subdivision or portion of any smallest sub- 
division thereof in any township, shall be found by the Department of the Interior 
to be mineral lands, said State is hereby authorized and empowered to select, in 
legal subdivisions, an equal quantity of other unappropriated lands in said State in 
lieu thereof, for the use and the benefit of the common schools of said State." 



LAISTDS FOE EDUCATIOi^AL PURPOSES. 47 

Section 14: 

"That all lands granted in quantity or as indemnity by this act shall be selected, 
under the direction of the Secretary of the Interior, from the surveyed, unreserved, 
and unappropriated public lands of the United States within the limits of the State 
entitled thereto. And there shall be deducted from the number of acres of land do- 
nated by this act for specific objects to said State the number of acres heretofore do- 
nated by Congress to said Territory for similar objects." 

STATE CONSTITUTION. 

Section 13, article 7, of the constitution, provides: 

"Land commissioners. — The governor, secretary of state. State treasurer, and 
superintendent of public instruction shall constitute a board of land commissioners, 
which, under direction of" the legislature, as limited by this constitution, shall have 
direction, control, leasing, and disposal of the lands of the State granted, or which 
may be hereafter granted, for the support and benefit of public schools, subject to the 
further limitations that the sale of all lands shall be at public auction, after such 
delay (not less than the time fixed by Congress) in portions at proper intervals of time, 
and at such minimum prices (not less than the minimum fixed by Congress) as to 
realize the largest possible proceeds." 

Article 18, section 1: 

"Land grants accepted — Price limit. — The State of Wyoming hereby agrees to 
accept the grants of lands heretofore made, or that may be hereafter made, by the 
United States to the State for educational purposes, for public buildings and institu- 
tions, and for other objects, and donations of money with the conditions and limita- 
tions that may be imposed by the act or acts of Congress making such grants or dona- 
tions. Such lands shall be disposed of only at public auction to the highest respon- 
sible bidder, after having been duly appraised by the land commissioners, at not less 
than three-fourths of the appraised value thereof, and for not less than $10 per acre." 

^ state legislation. 

Compiled Statutes of Wyoming, 1910 (sec. 607): 

"Acceptance op lands. — Under the provisions of article eighteen of the constitu- 
tion of the State of Wyoming, the State of Wyoming hereby accepted the lands granted 
to this State by the act of Congress entitled 'An act to provide for the admission of the 
State of Wyoming into the Union, and for other purposes, ' approved July tenth, eight- 
een hundred and ninety, for the purposes in the said act specified, and the said lands 
so donated by the United States of America to this State are hereby solemnly set 
apart to the purposes specified in the said act." 

Section 608: 

"Relinquishing lands. — ^Whenever, in the judgment of a majority of the mem- 
bers of either of the boards hereinbefore created, the interests of the State will be 
advanced by granting, conveying, or deeding to the Government of the United States 
of America any lands which have been heretofore granted, selected by, and patented 
to the State of Wyoming, then, in such case, said boards are hereby authorized and 
empowered to so grant, convey, and deed to the Government of the United States of 
America such lands. And the president of said boards and the commissioner of pub- 
lic lands are authorized and empowered to execute and deliver all necessary instru- 
ments to complete such grant or conveyance: Provided, always, That no such lands 
shall be so granted, conveyed, and deeded unless the Government of the United States 
of America shall and will permit and allow this State to select and have patented to 
it an equal area of other lands in lieu of the lands so reconveyed to the United States 
.of America." 

Section 629: 

"How sold. — AU State lands shall be disposed of only at public auction to the 
highest responsible bidder, after having been duly appraised by the board, except as 
provided in the last two preceding sections, and shall be sold at not less than three- 
fourths of the appraised value thereof, and for not less than $10 per acre." 

special exchange provisions. 

Under the following acts of Congress the State of Wyoming was authorized to recon- 
-vey certain described school lands to the United States, and select other lands in lieu 
thereof: Act of April 23, 1900 (31 Stat., 139); act of March 31, 1906 (34 Stat., 92); act 
of March 1, 1907 (34 Stat., 1055); act of April 12, 1910 (36 Stat., 295); act of August 24, 
1912 (37 Stat., 438); act of May 25, 1914 (38 Stat., 381). 



48 " LANDS FOR EDUCATIONAL PURPOSES. 

The authority of the State to consummate these exchanges being questioned, in 
view of the provisions in the State constitution with respect to the disposition of its 
school lands, the department held, January 31, 1908 (D-2439), that a reconveyance of 
these lands to the United States was a mere incident in the final adjustment of the 
grant to the State, and did not constitute a "sale or disposal" of the lands granted, 
within the meaning of the State constitution, and hence was not in contravention 
thereof. 

DECISIONS OP THE DEPARTMENT. 

By special instructions of June 4, 1898 (27 L. D., 35), the department held that the 
amendatory act of February 28, 1891, repealed so much of the proviso to section 2 of 
the gi'anting act as declares that the State shall not be entitled to select school indem- 
nity in lieu of sections 16 and 36 in the Yellowstone National Park. 

THE STATE OF UTAH. 

The grant for common schools was made bv section 6 of the enabling act, July 16, 
1894 (26 Stat.. 107): _ ' 

"Sec. 6. That upon the admission of said State into the Union, sections numbered 
two, sixteen, thirty-two, and thirty-six in every township of said proposed State, and 
where such sections, or any parts thereof, have been sold or otherwise disposed of 
by or under the authority of any act of Congi'ess, other lands equivalent thereto, in 
legal subdiAdsions of not less than one-quarter section, and as contiguous as may be 
to the section in lieu of which the same is taken, are hereby granted to said State for 
the support of common schools, such indemnity lands to be selected within said State 
in such manner as the legislatui'e may provide, with the approval of the Secretary of 
the Interior: Provided, That the second, sixteenth, tliii'ty-second, and thirty-sixth 
sections embraced in permanent reservations for national purposes shall not, at any 
time, be subject to the grants nor to the indemnity provisions of this act, nor shall 
any lands embraced in Indian, military, or other reservations of any character be sub- 
ject to the grants or to the indemnity provisions of this act until the reservation shall 
have been extinguished and such lands be restored to and become a part of the public 
domain." 

"Sec. 10. That the proceeds of lands herein granted for educatioD,al purposes, 
except as hereinafter otherwise provided, shall constitute a permanent 'school fund, 
the interest of which only shall be expended for the support of said schools, and such 
land shall not be subject to preemption, homestead entry, or any other entry under 
the land laws of the United States, whether surveyed or unsurveyed, but shall be 
surveyed for school purposes only." 

"Sec. 13. That all land granted in quantity oi- as indemnity by this act shall be 
selected, under the direction of the Secretary of the Interior, from the unappropriated 
public lands of the United States within the limits of the said State of Utah." 

Utah was admitted as a State by proclamation of the President January 4, 1896. 
(29 Stat., 876.) 

The act of May 3, 1902 (32 Stat., 188), extends to the State of Utah the provisions of 
the act of February 28, 1891 (26 Stat., 796): 

"That all the pro^^.sion3 of an act of Congress approved February twenty-eighth, 
eighteen hundred and ninety-one, which provides for the selection of lands for edu- 
cational purposes in lieu of those appropriated for other purposes be, and the same 
are hereby, made applicable to the State of Utah,_ and the grant of school landsto 
said State', including sections two and thirty-two in each township, and indemnity 
therefor, shall be administered and adjusted in accordance with the pro^dsion3 of said 
act, anything in the act approved July sixteenth, eighteen hundred and ninety-four, 
pro\dding for the admission of said State into the Union to the contrary notwithstand- 
ing. 

"Sec 2. That wherever the words 'sections sixteen and thirty-six' occiu: in said 
act, the same as applicable to the State of Utah shall read 'sections two, sixteen, 
thirty-two, and thirty-six,' and wherever the -words 'sixteenth and thirty-sixth 
sections' occur the same shall read 'second, sixteenth, thirty-second, and thirty-sixth 
sections,' and wherever the words 'sections sixteen or thirty-six' occur the same shall 
read 'sections two, sixteen, thirty-two, or thirty-six,' and wherever the words 'two 
sections' occur the same shall read 'fom' sections.'" 

state CONSTITUTION. 

It should be noted that no limitation is placed upon the price to be secured for 
school lands either in the constitution or in subsequent legislation. This for the 



LANDS FOR EDUCATIONAL PUEPOSES. 49 

reason that the grant itself contains no such limitation. By article 10 of the con-, 
stitution, section 5, it is provided: 

''The proceeds of the sale of land reserved by an act of Congress, approved Feb- 
ruary twenty-first, eighteen hundred and fifty-five, for the establishment of the 
University of Utah, and of all the lands granted by an act of Congress, approved 
July sixteenth, eighteen hundred and ninety-four, shall constitute permanent 
funds, to be safely invested and held by the State; and the income thereof shall 
be used exclusively for the support and maintenance of the different institutions 
and colleges, respectively, in accordance with the requirements and conditions of 
said acts of Congress." 

Article 20: ' 

"Section 1. Land grants accepted, on terms of trust. — All lands of the State 
that have been or may hei'eafter be granted to the State by Congress, and all lands 
acquired by gift, grant, or devise from any person or corporation, or that may oth- 
erwise be acquired, are hereby accepted and declared to be the public lands of the 
State, and shall be held in trust for the people, to be disposed of as may be pro- 
vided by law, for the respective purposes fcr which they have been or may be 
granted, donated, devised, or otherwise acquired." 

state legislation. 

By title 75 (Compiled Laws of Utah, 1907, p. 827), dealing with the State lands, 
provision is made (sec. 2321) for the creation of a board of land commissioners, to 
control State lands (sec. 2325). 

By section 2330 all selections are required to be made according to the United 
States survey in legal subdivisions, and the board is authorized to relinquish the 
claims of the State in any particular tract of land upon which at the time of selection 
a bona fide claim had been initiated by an actual settler. 

Section 2336 directs the manner of sale, and provides that no lands shall be sold 
for less than the appraised value. 

Section 2336x makes provision for the sale of State lands within the area of Gov- 
ernment irrigation works. 

court decisions. 

In United States v. Elliot (7 LTtah, 389), considering the character of title taken by 
the State to its school lands under the organic act, the court held that the reservation 
thus established was absolute, and as soon as the lands were surveyed they ceased to 
be public domain open to settlement, and said: 

"In Ferry v. Street (4 Utah, 521; 7 Pac. Rep., 712; 11 Pac. Rep., 571), this court, 
speaking of school lands, said that,'by the decisions of the Supreme Court of the United 
States 'the various acts of Congress mentioned reserving portions of the public lands 
of the United States to the Territories or States, vest the title to such lands so reserved 
in the Territories or States when the lands are surveyed, or when they are bounded 
or ascertained. Until such time, the obligation is executory, and the title remains 
in the Federal Government.' In the case of Newhall v. Sanger (92 U. S., 761), the 
Supreme Court of the United States, by Davis, J., said: 'The words "public lands" 
are habitually used in our legislation to describe such as are subject to sale or other 
disposal under general laws.' This decision was rendered nearly ten years before 
the law under which the present case is brought was passed, and it can not be pre- 
sumed that Congress was ignorant of it. It is a rule m the construction of statutes 
that where the legislative branch of the Government has reproduced language in 
statutory enactments which has been judicially construed it must be taken as using 
the words in accordance with the judicial construction previously given them, unless 
a contrary reason plainly appears from the other language used. (The Abbotsford, 
98 U. S., 440.) But in the present instance no language is used in the statute under 
which this case is brought indicating that the words 'public lands' are used in a dif- 
ferent sense from the definition of them given in Newhall v. Sanger, but, on the con- 
trary, the meaning given seems to have been in the minds of those who drafted the 
law." 

special exchange legislation. 

The act of March 4, 1915 (38 Stat., 1212), authorized the Secretary of the Interior 
to issue patent to the State of Utah for certain lands described, comprising in the 
whole 4,197.31 acres, "being a portion of the lands segregated to the State of Utah'by 
approval of the Secretary of the Interior February 1, 1908, under section 4 of the act 

H. Kept. 779, 64-1 4 



50 LAXDS FOE EDUCATIOlSrAL PUEPOSES. 

$i August 18, 1894 (28 Stat., 372-422), and the act amendatory thereof and supple- 
5^ental thereto, commonly known as the Carey act, in exchange for unsurveyed State 
school lands within national forests and certain acreage of township deficiency in 
surveyed townships in the State of Utah." 

Following a description of the lands to be received in exchange by the United 
States is a proviso : 

"That said patent shall not issue until the State of Utah shall have filed an uncon- 
ditional relinquishment of all the lands covered by Utah Segregation List Numbered 
Two, as well as a proper release of any interest or claim which the State of Utah may 
have or assert in or to the lands ofiered in exchange for those herein proposed to be 
patented." 

When the bill embodying the provisions of this act was before the department for 
9, report, it said: 

"In view of the decisions in Hibberd v. Slack (84 Fed. Rep., 571), State v. WTiitney 
et ux. (120 Pac, 116), and Balderston v. Brady et al. (107 Pac, 493, and 108 Pac, 
742), and Deseret Water & Irrigation Co. (138 Pac, 891), this department is, for the 
time being, abstaining from action for the approval and certification of all lists of State 
school land indemnity s3lections based, as ?re those here considered, on the exchange 
provisions of the act of February 28, 1891 (26 Stat., 796), amending sections 2275 and 
g276. United States Revised Statutes, the provisions of said act having been made 
iipplicable to the State of Utah by the act of May 2, 1902 (32 Stat., 188). 

' "The object of this is to permit a full and adequate inquiry relative to the state of 
the law bearing on the validity of such selections, as that law may be established or 
influenced by the decisions above cited and by the statutory and constitutional pro- 
visions in force in the several States by which said selections have been made and 
upon which these decisions are supposed to rest. It is not by any means certain, 
however, that anything involved in that inquiry necessarily questions the validity 
of selections made by Utah. The purpose has been and is rather to ascertain and 
define what legislation, if any, may be essential or advisable to provide adequate 
security for the titles secured by the States, by means of these selections, and, also, 
proper protection for the title oi the United States to lands surrendered as bases for 
these selections." 

MINERAL LANDS EXCEPTED FROM THE SCHOOL GRANT. 

The pending contention of the State of Utah, as well as that of New Mexico, that 
^al lands are not excepted from its school grant, constitutes a special feature in the 
adjustment of the grant to this State. The department has uniformly held. In a long 
Jine of decisions, that while the enabling act of the State of Utah did not, in terms 
contain a reservation from the school grant of mineral lands, yet lands of known 
mineral character, when the grant took effect did not pass to the State. The State 
being desirous of a judicial determination of its contention, the department, on April 
16, 1915, presented the matter to the Department of Justice, to which the following 
response was made April 23: 

"In reply permit me to suggest that there is no longer any room for argument of 
ihe question raised. Mineral lands were not included in the grant to New Mexico 
either for the support of schools or other purposes, and your departnient and the 
courts, including the Supreme Court, have uniformly held that coal is a mineral. 
Moreover, Congress itself has so decided by enacting special laws for the disposition 
of coal lands. 

"Under these circumstances your department would seem to be entirely justified 
jn continuing to administer the law as it has heretofore done, notwithstanding the 
attitude of the officials of the States of New Mexico and Ltah. 

"I do not feel that this department should promise to intervene or interfere in 
smy manner with such suit as might be brought by the State against a patentee, be- 
cause upon the issue of patent the interest of the United States is at an end, and if the 
aid of this department could be properly given to support the patent issued in one 
case, there would seem to be no good reason for refusing to lend -that support in any 
other similar case that might be presented. This, as you know, might lead to the Gov- 
ernment's becoming involved in endless htigation. 

"If the officials of the State really desire to test the question in the courts and to 
avoid placing upon its citizens the burden of defending the suit. I believe it can be 
most readily accomplished by the institution of suit in the District of Columbia to 
restrain the' Secretary of the "interior from issuing a patent under the coal-land laws 
for lands in a school section found by him to be coal lands. I can readily assure 
you of the good offices of this department in defense against such a proceeding." 



LANDS FOE EDUCATIONAL PURPOSES. 51 

The State of New Mexico. 

The grant of school lands to this State is peculiar in this, that it received a grant 
of sections 16 and 36 while it was yet a Territory by the act of June 21, 1898 (30 Stat., 
484). 

Section 1: 

"That sections numbered sixteen and thirty-six in every township of the Territory 
of New Mexico, and where such sections, or any parts thereof, are mineral or have 
been sold or otherwise disposed of by or under the authority of any act of Congress, 
other nonmineral lands equivalent thereto, in legal subdivisions of not less than 
one-quarter section, and as contiguous as may be to the section in Heu of which the 
same is taken, are hereby granted to said Territory in such manner as is hereinafter 
provided: Provided, That the sixteenth and thirty-sixth sections embraced in per- 
manent reservations for national purposes shall not at any time be subject to the 
grants of this act, nor shall any lands embraced in Indian, military, or other reserva- 
tions of any character be subject to the grants of this act; but such reservations shall 
be subject to the indemnity provisions of this act." 

"Sec. 7. That this act is intended only as a partial grant of the lands to which said 
Territory may be entitled upon its admission into the Union as a State, reserving the 
question as to the total amount of lands to be granted to said Territory until the admis- 
sion of said Territory as a State shall be determined on by Congress. 

"Sec. 8. That all grants of land made in quantity or as indemnity by this act shall 
be selected by the governor of the Territory of New Mexico, the surveyor general of 
the Territory of New Mexico, and the solicitor general of said Territory, acting as a 
commission, under the direction of the Secretary of the Interior, from the unappro- 
priated public lands of the United States within the limits of the said Territory of 
New Mexico." 

Section 10 of this act provides that sections 16 and 36, "reserved for pubUc schools," 
may be leased under such laws and regulations as may be prescribed by the legislature 
of the Territory, under approval by the Secretary of the Interior. 

EXTENSION OF GENERAL ADJUSTMENT ACT TO THE TERRITORY. 

Act of March 16, 1908 (35 Stat., 44): 

"That all the provisions of an act of Congress approved February twenty-eighth, 
eighteen hundred and ninety-one, entitled 'An act to amend sections twenty-two 
hundred and seventy-five and twenty-two hundred and seventy-six of the Revised 
Statutes of the United States providing for the selection of lands for educational pur- 
poses in lieu of those appropriated for other purposes,' be, and the same are hereby- 
made applicable to the Territory of New Mexico, and the grant of school lands to said 
Territory, and indemnity therefor, shall be administered and adjusted in accord, 
ance with the provisions of said act, anything in the act of Congress approved June 
twenty-first, eighteen hundred and ninety-eight, making certain grants of land to 
the Territory of New Mexico, and for other purposes, to the contrary notwithstanding." 

THE ENABLING ACT. 

By the act of June 20, 1910 (36 Stat., 567), admitting the Territory to statehood, a 
grant of school lands was made by section 6: 

^'Sec. 6. That in addition to sections sixteen and thirty-six, heretofore granted to 
the Territory of New Mexico, sections two and thirty-two in every township in said 
proposed State not otherwise appropriated at the date of the passage of this act are 
hereby granted to the said State for the support of common schools; and where sec- 
tions two, sixteen, thirty-two, and thirty-six, or any parts thereof, are mineral, or 
have been sold, reserved, or otherwise appropriated or reserved by or under the 
authority of any act of Congress, or are wanting or fractional in quantity, or where 
settlement thereon with a view to preemption or homestead, or improvement thereof 
with a view to desert-land entry has been made heretofore or hereafter, and before 
the survey thereof in the field, the provisions of sections twenty-two hundred and 
seventy-five and twenty-two hundred and seventy-six of the Revised Statutes are 
hereby made applicable thereto and to the selection of lands in lieu thereof to the 
same extent as if sections two and thirty-two, as well as sections sixteen and thirty- 
six, were mentioned therein: Provided, however. That the area of such indemnity 
selections on account of any fractional township shall not in any event exceed an area 
which, when added to the area of the above-named sections returned by the survey 
as in place, will equal four sections for fractional townships containing seventeen 
thousand two hundred and eighty acres or more, three sections for such townships 
containing eleven thousand five hundred and twenty acres or more, two sections for 



52 LANDS FOR EDUCATIONAL PURPOSES. 

such townships containing five thousand seven hundred and sixty acres or more, 
nor one section for such township containing six hundred and forty acres or more: 
And provided further, That the grants of sections two, sixteen, thirty-two, and thirty- 
six to said State, within national forests now existing or proclaimed, shall not vest 
the title to said sections in said State until the part of said national forests embracing 
any of said sections is restored to the public domain; but said granted sections shall 
be administered as a part of said forests, and at the close of each fiscal year there shall 
be paid by the Secretary of the Treasury to the State, as income for its common- 
school fund, such proportion of the gross proceeds of all the national forests within 
said State as the area of lands hereby granted to said State for school purposes which 
are situate within said forest reserves, whether surveyed or unsurveyed, and for 
which no indemnity has been selected, may bear to the total area of all the national 
forests within said State, the area of said sections when unsurveyed to be determined 
by the Secretary of the Interior, by protraction or otherwise, the amount necessary 
for such payments being appropriated and made available annually from any money 
in the Treasury not otherwise appropriated." 

Section 10 of the act declares that a disposal of the granted lands for purposes other 
than those designated shall constitute a breach of trust; provides for sales and leasee 
to the highest bidder, and further: 

"Lands east of the line between ranges eighteen and nineteen east of the New 
Mexico principal meridian shall not be sold for less than $5 per acre, and lands west 
of said line shall not be sold for less than S3 per acre, and no lands which are or shall 
be susceptible of irrigation under any projects now or hereafter completed or adopted 
by the United States under legislation for the reclamation of lands, or under any 
other project for the reclamation of lands, shall be sold at less than $25 per acre: P>;o-^ 
vided, That said State, at the request of the Secretary of the Interior, shall from time" 
to time relinquish such of its lands to the United States as at any time are needed 
for irrigation works in connection with any such Government project. And other 
lands in lieu thereof are hereby granted to said State, to be selected from lands of^the 
character named and in the manner prescribed in section eleven of this act. * * * 

"Every sale, lease, conveyance, or contract of or concerning any of the lands 
hereby granted or confirmed.' or the use thereof, or the natural products thereof not 
made in substantial conformity with the provisions of this act shall be null and void, 
any provision of the constitution or laws of the said State to the contrary notwith- 
standing. 

"It shall be the duty of the Attorney General of the United States to prosecute in 
the name of the United States and its courts such proceedings at law or in equity 
as may from time to time be necessary and appropriate to enforce the provisions hereof 
relative to the application and disposition of the said lands and the products thereof 
and the funds derived therefrom. 

"Nothing herein contained shall be taken as in limitation of the power of the State 
or of any citizen thereof to enforce the provisions of this act." 
• The State was admitted by proclamation, January 6, 1912. 

CONSTITUTION AND LAWS OF THE STATE. 

The laws of New Mexico are not codified, hence a copy of its constitution is not at 
hand ; nor do the Session Laws of 1912 and 1913 deal with any questions affecting the 
adjustment of the school grant, except the act of March 13, 1913, (Session Laws,_ p. 35) 
which authorizes the commissioner of public lands to employ additional assistance 
to defend against proceedings brought by the United States, to determine title to 
srhool or other State lands. 

MINERAL EXCEPTIONS. 

[See Utah ) 

Note.— No tabulated statistics with respect to the grant to this State are called for 
under this report, for the reason that under the terms of the grant the specified sec- 
tions within national forests, now existing or proclaimed, are administered as a part 
of said forests until the forests embracing such sections may be restored to the public 
domain. 

The State of Arizona. 

By section 24 of the enabling act of June 20, 1910 (36 Stat., 572), the following grant 
was made to the State for the benefit of common schools: 

"Sec. 24. That in addition to sections sixteen and thirty-six heretofore reserved 
for the Territory of Arizona, sections two and thirty-two in every township in said 
proposed State not otherwise appropriated at the date of the passage of this act are 



LANDS FOE EDUCATIONAL PUEPOSES. 53 

hereby granted to the said State for the support of common schools; and where sec- 
tions two, sixteen, thirty-two, and thirty-six, or any part thereof, are mineral, or 
have been sold, reserved, or otherwise appropriated or reserved by or under the author- 
ity of any act of Congress, or are wanting or fractional in quantity, or where settlement 
thereon with a view to preemption or homestead, or improvement thereof with a view 
to desert-land entry has been made the survey thereof in the field, the provisions of 
sections twenty-two hundred and seventy-five and twenty-two hundred and seventy- 
six of the Revised Statutes, and acts amendatory thereof or supplementary thereto, 
are hereby made applicable thereto and to the selection of lands in lieu thereof to the 
same extent as if sections two and thirty-two, as well as sections sixteen and thirty- 
six, were mentioned therein: Provided, however, That the area of such indemnity selec- 
tions on account of any fractional township shall not in any event exceed an area 
which, when added to the area of the above-named sections returned by the survey 
as in place, will equal four sections for fractional townships containing seventeen 
thousand two hundred and eighty acres or more, three sections for such townships 
containing eleven thousand five hundred and twenty acres or more, two sections 
for such townships containing five thousand seven hundred and sixty acres or more, 
nor one section for such townships containing six hundred and forty acres or more: 
And -provided further , That the grants of sections two, sixteen, thirty-two, and thirty- 
six to said State, within national forests now existing or proclaimed, shall not vest 
the title to said sections in said State until the part of said national forests embracing 
any of said sections is restored to the public domain; but said granted sections shall 
be administered as a part of said forests, and at the close of each fiscal year there 
shall be paid by the Secretary of the Treasury to the State, as income for its common 
school fund, such proportion of the gross proceeds of all the national forests within 
said State as the area of lands hereby granted to said State for school purposes which 
are situated within said forest reserves, whether surveyed or unsurveyed, and_ for 
which no indemnity has been selected, may bear to the total area of said sections 
when unsurveyed to be determined by the Secretary of the Interior, by protraction 
or otherwise, the amount necessary for such payments being appropriated and made 
available annually from any money in the Treasury not otherwise appropriated." 

"Sec. 28. That it is hereby declared that all lands hereby granted, including those 
which, having been heretofore granted to the said, Territory, are hereby expressly 
transferred and confirmed to the said State, shall be by the said State held in trust, 
to be disposed of in whole or in part only in manner as herein provided and for the 
several objects specified in the respective granting and confirmatory provisions, and 
that the natural products and money proceeds of any of said lands shall be subject to 
the same trusts as the lands producing the same. 

"Disposition of any of said lands, or of any money or thing of value directly or indi- 
rectly derived therefrom, for any object other than for T\hich such particular lands, 
or the lands from which such money or thing of ^alue shall have been derived, were 
granted or confirmed, or in any manner contrary to the provisions of this act, shall be 
deemed a breach of trust. 

"* * * Said lands shall not be sold or leased, in ^^hole or in part, except to the 
highest and best bidder at a public auction to be held at the county seat of the county 
wherein the land to be affected or the major portion thereof shall lie. * * * 

"All lands, leaseholds, timber, and other products of land, before being offered, 
shall be appraised at their true value, and no sale or other disposal thereof shall be 
made for a consideration less than the value so ascertained. * * *' 

"No lands shall be sold for less than §3 per acre, and no lands which are or shall 
be susceptible of irrigation under any projects now or hereafter completed or 
adopted by the United States under legislation for the reclamation of lands, or under 
any other project for the reclamation of lands, shall be sold at less than $25 per acre: 
Provided, That said State, at the request of the Secretary of the Interior, shall from 
time to time relinquish such of its lands to the United States as at any time are needed 
for irrigation works in connection -with any such Government project. And other 
lands in lieu thereof are hereby granted to said State, to be selected from lands of 
the character named and in the manner prescribed in section twenty-four of this 
act. * * * 

"Every sale, lease, conveyance, or contract of or concerning any of the lands hereby 
granted or confirmed, or the use thereof, or the natural products thereof, not made in 
substantial conformity ^^ ith the provisions of this act shall be null and void, any pro- 
vision of the constitution or laws of the said State to the contrary notu ithstanding. 

"It shall be the duty of the Attorney General of the United States to prosecute, in 
the name of the United States and in its courts, such proceedings at la v or in equity 
as may from time to time be necessary and appropriate to enforce the provisions hereof 
relative to the appUcation and disposition of the said lands and the jjroducts thereof 
and the funds derived therefrom. 



64 LAIRDS FOE EDUCATIONAL PUEPOSES. 

"Nothing herein contained shall be taken as in limitation of the po^er of the State 
or of any citizen thereof to enforce the provisions of this act." 
The State was admitted by proclamation February 14, 1912. 

STATE COXSTITL'TION, 

Article 10 of the State constitution provides for an acceptance of the grant of school 
lands in accordance with the terms affixed thereto. That no lands shall be sold for less 
than $3 per acre, and no irrigable lands susceptible of irrigation under any United 
States reclamation project at less than S25 an acre; and pro\ides for the relinquishment 
of school lands for the benefit of reclamation projects. 

STATE LEGISTATION. 

By section 4501, Civil Code of 1913. the legislative acceptance of the school 
grants is given. 

Section 4563. et seq.. provides for a State land commission. 

"4572. The commission is authorized to relinquish lands settled upon ^^ithin 
national forests prior to the admission of the State where essential to the protec- 
tion of just and equitable rights of the settlers."' 

Section 4597 declares that no lands shall be sold for a less price than is provided 
by the constitution of the State and by the enabling act. 

XoTE. — Xo tabulated statistics with respect to the grant to this State are called 
for under this report, for the reason that under the terms of the grant the specified 
sections within national forests, now existing or proclaimed, are administered as a 
part of said forests until the forests embracing such sections may be restored to 
the public domain. 

5. PROPOSED LEGISLATION. 
(A) Amexdatory Act of 1891. 

At different times during the Sixty-second and Sixty-third Congresses bills 
were introduced intended to authorize an exchange of title as between States and 
the United States. Attention is especially directed to S. 5068. entitled "An act 
to authorize the Secretary of the Interior to exchange lands for school sections within 
an Indian, military, national forest, or other reservation, and for other purposes." 
Report No. 945, Calendar No. 328, submitted by the Senate Committee on Public 
Lands on this bill, cSntains a very full presentation of the causes leading up to 
the introduction of this bill, in which the decisions of the department on this sub- 
ject and of the courts, especially that of Hibberd r. Slack (84 Fed. Rep.. 571), are 
cited and discussed. It should be noted with respect to these bills that the depart- 
ment took the position that such legislation was not absolutely necessary, but that 
its enactment would remove all further question as to the validity of exchanges 
theretofore made under the act of February 28, 1891. Other bills (H. R. 19344 
and H. R. 25738) were also introduced in the Sixty-second Congress, both to the 
same purpose and substantially along the same line as S. 5068, but all equally 
failed of enactment at the hand's of Congress. 

In the Sixty-thii'd Congress, House joint resolution 266 was introduced for the 
purpose of "authorizing and validating certain exchanges of land between the United 
States and the several States," which in effect was intended to bring about the same 
result as contemplated in the bills introduced in the prior Congress. 

This office submitted a report on said joint resolution (copy herewith), together 
with a draft of a proposed substitute, which was intended not only to cover the "ex- 
change '' question, but also the amendatory effect of the act of 1891 upon gi-ants made 
prior thereto. Our report did not meet with the approval of the department, but in 
consideration thereof, and for the purposes of determining in what form, if any, legis- 
lative remedies could be applied to the existing conditions, the present call for a 
report was made by the department. 

Department of the Interior, 

Washington. 
Hon. Scott Ferris, 

Chairman Committee on Public Lands, House of Representatives. 

My Dear Mr. Ferris: I am in receipt of a copy of House joint resolution 266, with 
request for report thereon, with such suggestions and recommendation as I may deem 
appropriate. 

The resolution is for the purpose of "Authorizing and validating certain exchanges 
of land between the L'nited States and the several States," and is introduced by the 
following preamble: 



LANDS FOR EDUCATIONAL PURPOSES. 55 

"W^6i'^^s_ doubt and uncertainty has arisen concerning the purpose and effect of 
certain provisions contained in the act of Congress approved February 28, 1891 (26 
Stat., 796) authorizing selections by States and Territories of public lands in lieu 
of lands in sections 16 and 36 within certain reserves: Therefore, etc." 

The body of the resolution authorizes the Secretary of the Interior to accept from 
any State having within its boundaries surveyed or unsurveyed lands included ift 
National reservations, proper and satisfactory transfer of such lands which the Stat6 
may desire to exchange for other lands within the State, etc.; closing with a proviso 
that all such exchanges heretofore made and approved by the Secretary of the Interior 
are ratified and confirmed. 

The act of 1891 referred to in the preamble is entitled "An act to amend sections 
2275 and 2276 of the Revised Statutes of the United States, providing for the selection 
of lands for educational purposes in lieu of those appropriated, and for other purposes," 
and makes pro\'ision by a very substantial amendment for an entire scheme of adjust- 
ing the grants of sections 16 and 36, made to the several States, as follows: 

1. For lands covered by settlement before survey. 

2. For mineral lauds. 

3. Lands included within national reservations, or otherwise disposed of. 

4. For sections fractional, or wanting, due to fractional townships. 

The department from the beginning construed this amendatory act as general ill 
character, establishing a uniform rule with respect to the adjustment of school-land 
grants, affording each State an equal right of indemnity, and superseding, so far as in 
conflict, all other laws bearing upon the same subject. See departmental instructions 
of April 22, 1891 (12 L. D., 400). This interpretation of the scope of the act has re-» 
mained unmodified so far as the decisions of the department are concerned. The 
occasion for the issuance of the instructions above cited, which, as will be observed, 
was very shortly after the passage of the amendatory act, arose from the necessity of 
determining the effect of this legislation upon the enabling act of February 22, 1889 
(25 Stat., 676), by which provision was made for the admission to the Union of the 
States of North Dakota, South Dakota, Montana, and Washington, wherein a grant of 
sections 16 and 36 was made in aid of the public schools, providing indemnity only 
for lands "sold or otherwise disposed of" at the date of the act, and withdrawing said 
sections either surveyed or unsurveyed from all disposition. 

The act of July 3, 1890 (26 Stat., 215), admitting Idaho to the Union, and providing 
a school grant, was in the same terms, as well as the later acts of July 10, 1890 (26 Stat. , 
222), and July 16, 1894 (28 Stat., 107), making grants to the States of Wyoming and 
Utah, respectively. 

But in the case of the State of Washington v. Whitney (120 Pac. E-ep., p. 116), it was 
held by the supreme court of that State, January 4, 1912, that the enabling act of 
February 22, 1889, made a present grant to the State of the specific sections 16 and 36, 
whether surveyed or unsurveyed, and that the act of 1891 amendatory of sections 2275 
and 2276 of the Revised Statutes in no manner operated to repeal or modify the pro- 
visions of the grant made to the State in said enabling act. 

The department also held, construing said act of 1891 (28 L. D., 57): 

"Where a forest reservation includes within its limits a school section surveyed 
prior to the establishment of the reservation, the State, under the authority of the 
first proviso to section 2275, Revised Statutes, as amended by the act of February 28, 
1891, may be allowed to waive its right to such section and select other lands in lieu 
thereof." 

This decision was a recognition that the amendatory act provided for an "exchange 
of title" between the State and the United States, as well as indemnity, in case the 
State had sustained a loss to the sections in place, and was equally applicable to all 
public-land States. This construction of the law has never been modified by the 
later departmental decisions, but in the case of Hibberd v. Slack (84 Fed. Rep., 571), 
a contrary view of the several acts was reached, substantially to the effect that the 
act of 1891 was confined in its operations solely to a provision for "indemnity" in 
case of loss, and this decision was cited and followed by the Supreme Court of Cali' 
fornia January 20, 1914, in the case of Deseret Water, Oil & Irrigation Co. v. The 
State of California (138 Pac. -Rep., 981). 

It is therefore seen that the departmental construction of the act of 1891 has, by 
the courts, been called in question in the following particulars: 

1. That the amendatory provisions of said act constitute a general scheme for the 
indemnification of the States as against loss occurring in the granted sections and 
supersedes all provisions for indemnity in grants of school lands made prior thereto. 

2. That the act of 1891 was not only an act providing for indemnification as against 
loss, but also authorized an "exchange" of title between the State and the United 
States where the s;ranted eections fell within a nation al reservation. 



56 LAIs-DS FOR EDUCATIONAL PURPOSES. 

"^Tiile it is true that the decisions of the courts ■nherein these questions have thus 
far been considered are not of necessity final or conclusive, so far as governing the action 
of the dej^artment is concerned, yet is is deemed inadvisable for the dei^artment to 
further proceed in the adjustment of these school grants in accordance vrith its former 
construction of the statutes with the uncertainty that is nosv attendant upon such 
action and the possibility of an ultimate reversal of its holding by a final decision in 
the United States Supreme Court. 

In view of this situation, several bills were introduced in the Sixty-second Congress- 
House bill 19344 and Senate bill 5068— both of which received substantially the ap- 
proval of the department. Senate Report Xo. 948 on S. 5C68 contains a full recitation 
of the several decisions of the department and the court, bearing jsarticularly upon 
the "exchange" feature of the act of 1891 as recognized by the department. The 
department also has under consideration S. 787, introduced in the present Congress 
and addressed to the same cjuestion. 

Referring again to the early holding of the department as to the general scheme for 
adjustment furnished by the act of 1891 as to all prior grants, it is to be noted that in 
the subsequent grant to Utah in 1894 the terms of the grant made by the act of 1889 
were followed, but Congress later, by the act of May 3. 1902 (32 Stat.'. 188). extended 
the benefit of the adjustment act of 1891 to that State, as was also done in the case of 
New Mexico by act of March 16. 1908 (35 Stat., 44). 

This action of Congress may very well be taken as an apisroval of the departmental 
application of the general scheme to all jirior gi'ants. This can be readily understood 
when it is remembered how much more generous the provisions in the art of 1891 are 
in the matter of indemnity than the act of 1889, and the apparent intention of Congress 
of placing all the States on an equal footing. However this may be. the fact yet 
remains that the State of Washington, speaking through its sujireme court, has held 
the act of 1891 inapplicable to its school grant and thus rendered its further adjustment 
in that State a matter of doubtful policy in the absence of further legislation. 

In dealing with this ciuestion. howevver, the fact should not be overlooked that 
prior to the decision of the court noted above, the State of Washington had received 
title to many selections based on the dejjartmental construction of its grant, and has 
pending selections of a similar character at the present time, as will appear from the 
tabulated statistics herewith; but if Congress ratifies and confirms selections of such 
character heretofore made, and in terms extends the provisions of the act of 1891 to 
the grant made under the act of 1889, then all question as to the applicability of the 
later act will cease to exist. 

Again, the decisions in Kibberd v. Slack and in the Deseret case go substantially 
on the gi'ound that the act of 1891 does not deal with the "'exchange" ciuestion, but 
only with indemnity for lands lost in place. Hence if Congi-ess ratifies such exchanges 
heretofore made and distinctly authorizes similar action hereafter, all objections 
founded on the Ilibberd-Slack doctrine will disappear, so far as want of aiithority on 
the part of the department is concerned. 

On the other hand, the character of the title received by the I iiited v'^tates from the 
State, either in the matter of indemnity for loss or in exchange of title, will be also 
put beyond question liy the requii'ement of assent tJD the provisions of this curative 
legislation on the part of the State. 

The gi'ant of February 22. 1889. fixed the price at which school lands shall be dis- 
posed of at not less than SIO per acre. The State of Washington, in its constitution 
and latei- by legislation, made due provision for the observance of this condition in 
the gi'ant, authorizing, however, an exchange of title between the State and United 
States if the granted lands were included in a national reser-\'ation. The position was 
at one time taken that under such a constitutional pro-sision the legislature would be 
prohibited from authorizing an excnange of lands between the State and the United 
States; but in Rogers v. Lawley (19 Idaho. 751) it was held l".;y the supreme court of 
that State that under a similar constitutional limitation an act of the legislature 
authorizing an exchange lietween the State and the Tfnited States is not obnoxious 
to the constitution. A like conclusion was reached hj the department in the execution 
of the act of March 1. 1907 (34 Stat.. 1055), authorizing the exchange of certain lands 
between the State of AYyoming and the United States, it Ijeiiig held that a recon- 
veyance of these lands to the United States is a mere incident to the final adjustment 
of the gi'ant and did not constitute a sale or disposal of the lands granted within the 
meaning of the State constitution. It would therefore a})pear that if Federal legis- 
lation of the character contemplated herein is enacted the accejitance thereof by the 
States will not be prevented l;>y constitutional limitations. 

The purposes contemplated by the joint resolution now under consideration meets 
with the approval of the department: but it is of too general a character to reach all 
of the difficulties that confront the fm'ther adjustment of the school grants, and for 
that reason a substitute bill is submitted herewith. 



LANDS FOE EDUCATIONAL PURPOSES. 57 

In this report reference has been made mainly to conditions developing in the 
adjustment of the grants in California and in Washington, but the departmental 
construction of the several grants necessarily operates upon all States having similar 
grants, and the decisions of the courts take on a significance broader than the terri- 
torial limits of the State. To emphasize the importance of the proposed legislation, 
and the magnitude of the interests involved, I submit the following tabulated state- 
ment showing approximately the acreage of selections, approved and pending, made 
on a basis of an equal acreage of lands in school sections surveyed and unsurveyed 
within the boundaries of national forests and national parks. 

1. Acreage, by States, of approved indemnity school land selections made on basis 
of surveyed school sections within national forests: ^ 

Acres. 

California = 68,000 

Colorado 475,500 

Idaho 000 

Montana 7, 200 

Oregon 106, 600 

South Dakota 9,000 

Utah 16, 600 

Washington 000 

Wyoming 129, 000 

Total 811, 900 

2. Acreage, by States, of pending indemnity school land selections made on basis 
of surveyed school sections within national forests: 

Acres. 

California 222,000 

Colorado 30, 200 

Idaho 5, 000 

Montana 4.3, ] 00 

Oregon 6, 300 

South Dakota 19, 500 

Utah OCO 

Washington 000 

Wyoming 57, 400 

Total 383, 500 

3. Acreage, by States, of approved indemnity school land selections on basis of 
unsurveyed school sections within national forests: 

Acres. 

California 168, 800 

Colorado 54,000 

Idaho 1 88, 600 

Montana 228, 400 

Orei^on 232, 000 

South Dakota 2, 500 

Utah 355, 000 

Washington 104, 000 

Wyoming 297, 000 

Total 1, 630, 300 

4. Acreage, by States, of pending indemnity school land selections made on basis 
of unsurveyed school sections within national forests: 

Acres. 

California 42, 600 

Colorado ' 2, 200 

Idaho 493, 200 

Montana 166, 900 

Oregon 7, 200 

South Dakota 8, 200 

tJtah : 31, 300 

Washington 16,-500 

Wyoming 23, 600 

Total 791 700 



58 LAXDS FOE EDUCATIOXAL PURPOSES. 

NATIONAL PARKS. 

1. Acrease, by States, ot approved indemnity school land selections made on basis 
of surveyed school sections within national parks* 

Acres. 

California 31, 400 

South Dakota 960 

Total 32, 360 

2. Acreage, by States, of approved indemnity school land selections made by States 
on the basis of unsurveyed school sections in such parks : 

Acres. 

California 300 

Montana 15, 200 

Wyoming 77, 700 

Total 93, 200 

3. Acreage, by States, of pending indemnity school land selections made on basis 
of sui"v'eyed school sections within such parks: 

Acres. 

CaUfornia 2, 600 

4. Acreage, by States, of pending indemnity school land selections made on basis 
of unsur\-eyed school sections in such parks: 

Acres. 

Montana 31, 000 

Wyoming • 1, 000 

Total 32, 000 

(Above statement was approximately correct when prepared, early in the spring 
of 1914. "Wliatever discrepancies may exist between the figures therein and those 
prepared recently, after an extended tract book examination, are due mainly to 
intervening additions to and eliminations from national forests and to new indemnity 
selections. ) 

If this measiu'e receives the approval of Congress, all defects in title, now held by 
the courts to exist, will be cured, and the e^•ident intention of Congress to secure 
uniformity in the adjustment of school grants will be consummated; I therefore 
recommend its passage. 
Respectfully, 

[House joint resolution 266, Sixty-third Congress, second session.] 



JOINT RESOLUTION Authorizing and validating certain exchanges of land between the United State-S 

and the several States. 

Whereas doubt and uncertainty have arisen concerning the purpose and effect of the 
pro^^.sions contained in the act of Congress approved February twenty-eighth, 
eighteen hundred and ninety-one (Twenty-sixth Statutes at Large, page seven 
hiindred and ninety-six i, entitled ''An act to amend sections twenty-two hundred 
and seventy-five and twenty-two hundred and seventy-six of the Revised Statutes 
of the United States, providing for the selection of lands for educational purposes 
in lieu of those appropriated, and for other purposes:"" Therefore be it 
Resolved by the Senate and House of Representatives of the United States of America in 
Congress assembled, 

Section 1. That the pro\-islons of said act are hereby declared applicable to the 
grant of school lands made by the acts of February twenty-second, eighteen hundi'ed 
and eighty-nine (Twenty-fifth Statutes at Large, page six hundred and seventy-six), 
July third, eighteen hundred and ninety (Twenty-sixth Statutes at Large, page two 
hundred and fifteen i, and July tenth, eighteen hundred and ninety (Twenty-sixth 
Statutes at Large, page two hundred and twenty-two i; and all selections heretofore 
made and approved under said grant and in accordance with said act, if otherwise 
lawful, are hereby ratified and confirmed. 



LANDS FOE EDUCATIONAL PURPOSES. 59 

Sec. 2. That said act of February twenty-eighth, eighteen hundred and ninety-one, 
is hereby declared full authority for the exchange of title between the State and the 
United States where the sections designated in the grant, whether surveyed or unsur- 
veyed, are included within a national reservation or park; and all such exchanges 
heretofore made and approved, if otherwise lawful, are hereby ratified and confirmed. 

Sec. 3. That the provisions of this resolution shall be deemed and held applicable 
only where the State shall have, by legislative enactment, signified its assent to the 
terms of said act of eighteen hundred and ninety-one as herein declared. 

(B) Mineral Lands. 

No provision is made by any of the grants of school land to the several States for 
the issuance of a patent as evidence of title. Under a grant in this form the right of 
the State to the lands granted is fixed by their identification upon survey. If at such 
time the land is of known mineral character the title does not pass thereto, although 
the grant does not in terms except mineral lands. 

Great uncertainty, therefore, as to the lands actually granted has often arisen, due 
to the fact that no formal adjudication of their character has been required in the 
Interior Department. To give better assurance of title under school grants Senate 
bill 2911 was introduced in the Sixty-third Congress and was made the subject of a 
report by the department. (Copy follows:) 

Department of the Interior, 

Washington, August 12, 1914. 
Hon. Henry L. Myers, 

Chairman Committee on Public Lands, United States Senate. 

My Dear Senator: In response to the request of your committee for a report on 
Senate bill 2911, entitled "A bill further to assure title to lands granted the several 
States, in place, in aid of public schools, " I have to submit the following: 

The purpose of this bill is to furnish the various States a record title to the lands 
in place granted in aid of pubUc schools, and the necessity for such legislation arises 
from the absence of any statutory provision to this effect under the form in which 
school land grants have heretofore been made by Congress. These grants are uni- 
formly made by a simple designation of certain sections by number, without provision 
for the issuance of any evidence of title. Under a grant made in this form the right of 
the State as to the lands granted is fixed by their identification upon survey and ia 
not dependent upon any specific adjudication by the Interior Department. 

A statutory grant of this character calls for no further evidence of title, as the statute 
in such case is both a grant and a conveyance, so far as the lands are of the character 
granted and otherwise subject thereto; but it has been held by the Supreme Court of 
the United States that, although the grant to the public schools is in general terms 
and without an exception of mineral lands, it does not pass title thereto for the reason 
that "Congress did not intend to depart from its uniform policy in this respect in the 
grant oit these sections to the State, " and that mineral lands are therefore excluded 
from the grant. (Consolidated Mining Co. v. Consolidated Mining Co., 102 U. S., 175; 
Deffeback v. Hawk, 115 U. S., 392.) 

The known condition of the designated section at the date when the grant takes 
effect determines whether the land does or does not pass thereunder; and if at that time 
the land is not known to contain mineral, a subsequent discovery thereof will not 
affect the title to the State. (Deffeback v. Hawk, supra; Colorado Coal Co. v. United 
States, 123 U. S., 328; Shaw v. Kellogg, 170 U. S., 312.) 

It will therefore be seen that in the absence of some provision by which the known 
condition of the specified sections, at the date when the grant takes effect, can be ascer- 
tained and adjudicated, the title of the State must remain doubtful and subject to 
attack and this bill is intended to provide a remedy for such uncertainty in title. 
Under its provisions the Secretary of the Interior, on request of the State, will, by 
appropriate means, ascertain the known character of the land and the date when the 
grant became effective, and upon the evidence thus obtained determine whether the 
land does or does not fall within the terms of the grant, and either issue or withhold 
patent in accordance with such conclusion. A patent issued after such a determina- 
tion by the Secretary will operate as a conclusive assurance of the title taken by the 
State under the grant. (Rogers Locomotive Works v. American Emigrant Co., 164 
U. S., 559.) 

The bill as it now stands provides for publication in all cases, preceding final action 
on the part of the department. In my judgment, such a requirement will, in very 
many instances, result in useless expense to the State. In States like Alabama and 
Minnesota, for example, to wliich the mineral land laws do not apply, as well as in 



60 LANDS FOR EDUCATIONAL PURPOSES. 

those sections of the public land States where the land is known to be purely agricul- 
tural in character, publication will not be needed for the protection of mineral loca- 
tors. As to claims other than those under the mining laws, this department is without 
jurisdiction to entertain any except such as may be baaed upon settlement prior to 
survey in the field. 

With respect to school lands sm-veyed many years ago, and as to which no settle- 
ment has ever been asserted, it may safely be assumed that no such claim exists. It 
is, therefore, believed to be better to omit the arbitrary requirement of publication 
in all cases and empower the Secretary of the Interior to make such rules and regula- 
tions as will insure protection of bona fide claims to lands in the school sections with 
the minimum of expense. In view of the wide variance of conditions in the several 
States, I am strongly of the opinion that the satis factory and orderly working of the 
proposed law will largely depend upon the grant to tliis department of authority to 
administer it in the light of conditions known to exist in the different States and 
localities. 

The bill as it now stands provides for evidence of title by certification in the event 
that the State is found entitled to the lands, but it is believed that the ordinary form 
of conveyance adopted by the Government is preferable, and for that reason, as well 
as the one hereinbefore cited, the bill has been redrafted. An additional section has 
been added, authorizing the Secretary of the Interior hereafter to issue patent under 
State grants, where selections authorized thereby have received departmental ap- 
proval. This is in line with the general views expressed herein and will furnish 
the State a much more convenient evidence of title than the certification under the 
present practice. 

With the modification indicated in the redraft submitted herewith, I recommend 
the enactment of the bill into law. 
Respectfully, 

A. A. Jones, 
First Assistant Secretary. 

[S. 2911, Sixty-third Congress, first session.] 
REDRAFT. 

A BILL Further to assure title to lands granted the several States, in place, in aid of public schools. 

Be it enacted by the Senate and House of Representatives of the United States of America 
in Congress assembled, That where a grant of lands in place has heretofore been made, 
or may hereafter be made, to any State in aid of public schools, the governor of any 
such State may cause to be listed with the Secretary of the Interior any sections or 
parts of sections as designated in the grant, and it shall be the duty of the Secretary of 
the Interior to issue a patent to the State in further assurance of title, of all tracts thus 
listed, and found to be of the character granted, and free from valid, adverse claims 
at the time when the rights of the State attach: Provided, That nothing herein con- 
tained shall be so construed as to postpone the time of the attachment of the grant 
of such lands under existing law. 

Sec. 2. Hereafter, on approval by the Secretary of the Interior of selections made 
by any State under grants made by Congress, he shall direct the issuance of patent 
for the lands so selected and approved. 

Sec. 3. The Secretary of the Interior is hereby authorized and empowered to make 
such rules and regulations as may be necessary to carry into effect the provisions of 
this act and to afford to any adverse claimant of lands listed by the State an oppor- 
tunity to be heard in defense of his claim. 

6. TABULATED STATEMENT. 

Note. — It has been found impracticable in a report of this character, to furnish 
actual dates when forest reservations or withdrawals were made, because of the 
numerous changes which have been made in the names and boundaries thereof. 

Forest reserves were authorized by the act of March 3, 1891, and the date of with- 
drawal or reservation of any particular tract of land is readily ascertainable. 

Reference is made to the report of the Commissioner of Indian Affairs for the year 
1908, pages 149 to 164, for a schedule showing each Indian reservation, under what 
agency or school, tribes occupjdng or belonging to it, area not allotted or specially 
reserved, and authority for its establishment. 



LANDS FOE EDUCATIONAL PURPOSES. 



61 



The State of California. 

[Enabling act of Mar. 3, 1853 (10 Stat., 244).] 

Area of school sections vnthin national fore. ti. 



Forests. 



Angeles 

Crater 

Cleveland 

Eldorado 

Inyo 

Kern 

Klamath 

Lassen 

Modoc 

Mono 

Monterey 

Plumas 

Santa Barbara 

Sequoia 

Shasta 

Sierra 

Siskiyou 

Stanisla-us... . 

Tahoe 

Trinity 

Totals.. 



Surveyed. 



Acres. 
44,725.14 
3,017.84 
31,099.65 
39, 977. 43 
32, 683. 36 
21, 407. 19 
90,471.23 
60,849.18 
74, 193. 62 
30, 865. 23 
23, 660. 77 
64,416.14 
77,145.55 
30,491.58 
73.815.84 
41,409.83 
20, 045. 27 
39,523.87 
57,715.79 
89,187.55 



946,702.06 



Unsurveyed. 



Acres. 
480. 00 



2, 240. 00 
1,920.00 

33,320.00 

14,520.00 
1,280.00 
3,200.00 
3,360.00 
7,520.00 
1,120.00 
8,320.00 
5, 920. 00 
9,280.00 
4,960.00 

19,840.00 
1,587.84 

15, 720. 00 
1,600.00 
3,040.00 



139,227.84 



Used as base 
for selections. 



Acres. 
34,536.11 

1,843.23 
16,599.24 
15, 967. 07 
43,040.30 
30,278.08 
67, 437. 62 
26,558.14 
20, 549. 82 
21,910.12 
10,916.86 
32,716.72 
41,459.83 
21,421.57 
35,073.43 
38,841.01 

9, 220. 03 
25,945.30 
37, 055. 23 
40,934.03 



572,303.82 



Not offered 
as base. 



Acres. 
10, 669. 03 

1,174.61 
16,740.41 
25,930.36 
22,963.06 

5,649.11 
24,313.61 
37,491.04 
57,003.80 
16,475.11 
13,863.91 
40,019.42 
41,605.72 
18,350.01 
43,702.41 
22, 408. 82 
12,413.0? 
29,298.49 
22,260.56 
51,293.52 



513,626. 



Data were secured in 1912 showing sales by the State of school lands in place. The 
acreage of such sales within the boundaries of national forests and national parks is as 
follows: 

Acres. 

In national forests 424, 000. 45 

In national parks 466. 98 

Total 424, 467. 43 

Areas of school sections in national paries and Indian reservations. 



Forests. 



Surveyed. 



Unsurveved. 



Used as base 
for selections. 



Not offered 
as base. 



National parks: 

California , 

Sequoia 

Yosemite 

Indian reservations: 

Colorado 

Hupa Valley 

Mission 

Tule Riser 

Yuma 

Round Valley... 



Acres. 
54,051.41 
8,960.00 
31,184.20 

1,895.06 
4,904.01 
3,680.00 
1,920.00 
1,708 26 
2,407.46 



Acres. 
1,600.00 



7, 680. 00 



Acres. 
12,560.54 
7,636.12 
32,370.67 

969. 26 
4,693.70 
1,920.00 
1,920.00 
1,588.26 
1,280.00 



Acres. 
43,090.87 
1,323.88 
6, 493. 53 

925. 80 

210.31 

1,760.00 



120. 00 
1,127.46 



Acreage of school sections or parts thereof within other ivithdrawals or reserves, or classified 
as valuable for coal or other minerals. 

Reclamation, first form 69, 281. 84 

Reclamation, second form 15, 792. 80 

Coal 2, 440. 00 

Potash 5, 200. 00 

Power 5, 521. 83 

Petroleum 60, 997. 79 

Naval reserve 3, 252. 39 

Bird reserves 1, 600. 00 



62 



LAXDS FOR EDUCATIONAL PURPOSES. 



Acreage of pending school land indemnity selections vjithin the boundaries of various 
Vjithdraivn areas, or classified as valuable for minerals. 

National forests 71, 666. 35 

Power-site reserves 7, 030. 84 

Petroleum 12, 563. 56 

Coal 1, 920. 64 

Keclamation, first form 2, 146. 05 

Water reserves 2, 049. 69 

Bird reserves 80. 00 

The State of Oregon. 

[Enabling act of Feb. 14, 1859 (11 Stat., 383).] 
Areas of school sections within national forests . 



Forests. 



Surveyed. Unsurveyed. 



Used as base 
for selections.' 



Not offered 
as base. 



Cascade... 

Crater 

Deschutes. 
Fremont.. 
Malheur... 

Minam 

Ochoco . .. 

Oregon 

Paulina... 
Santiam... 
Siskiyou . . 
Sluslaw... 
Umatilla. . 
Umpqua. . 
■NVallowa.. 
Wenaha... 
Whitman . 



Acres. 

18,112.00 

20,160.00 

37, 136. 04 

16,000.00 

53.720.00 

18,880.00 

31,360.00 

32,158.70 

31,920.00 

19,200.00 

14,012.28 

30,547.74 

16,640.00 

17,280.00 

30, 195. 60 

15, 772. 95 

30,320.00 



Acres. 

50,240.00 

10,560.00 

8,640.00 

5,120.00 

3,840.00 

5,120.00 

2,560.00 

31,680.00 

12,800.00 

14,080.00 

44,720.00 

640. 00 



37, 120. 00 

26, 560. 00 

7, 255. 88 

5.760.00 



Total 433,413.31 266,695.88 



Acres. 
55,390.72 
14, 071. 80 
14,404.72 
9,720.00 
9,520.00 
19,080.00 
4,720.00 
41.720.00 
16, 300. 00 
21,684.21 
43,571.59 
9, 800. 00 
1,360.00 
37,520.00 
36,331.54 
15, 661. 56 
26,474.00 



377, 330. 14 



Acres. 
12,961.28 
16, 648. 20 
31,371.32 
11, 400. 00 
48,040.00 
4,920.00 
29, 200. 00 
22, 116. 70 
28, 420. 00 
11, 595. 79 
15, 160. 69 
21,387.74 
15,280.00 
16,880.00 
20, 424. 06 
7, 367. 27 
9,606.00 



322, 779. 05 



Areas of school sections in national parks and Indian reservations. 



Forests. 



Surveyed. Unsurveyed. 



Used as base 
for selections. 



Not offered 
as base. 



National parks: 

Oregon Caves 

Crater Lake Park. 
Indian reservations: 

Klamath 

Warm Springs 

Umatilla 



Acres. 



Acres. 

640. 00 
7, 680. 00 



73, 073. 74 
13,520.00 
17,746.79 



12, 800. 00 



Acres. 

640. 00 
7.680.00 

73, 073. 74 
24,400.00 
17. 746. 79 



Acres. 



1,920.00 



Acreage of school sections or parts thereof within other withdrawals or reserves. 

Reclamation, first form - - - 46, 679. 83 

Reclamation, second form 640. 00 

Power 40.00 

Bird reserves : 698. 82 

No school-land indemnity selections are found to be pending within areas with* 
drawn from entry or classified as valuable for coal or other minerals. 



LANDS FOE EDUCATIONAL PURPOSES. 



63 



The State of Colorado. 

[Enabling act of Mar. 3, 1875 (18 Stat., 474).] 

Areas of school sections within national forests. 



Forests. 



Surveyed. 



Unsurveyed. 



Used as base 
for selections. 



Not offered 
as base. 



Pike , 

Leadville , 

Rio Grande... 

San Juan 

Routt , 

Cachetopa 

Montezuma . . , 

Arapahoe 

San Isabell 

Colorado , 

Durango , 

Holy Cross 

Gunnison 

Sopris , 

Uncompahgre, 

Hayden , 

White River . , 

Total... 



Acres. 
72,000.00 
64,480.00 
60,400.00 
54,580.00 
51,360.00 
44,800.00 
37,760.00 
36,160.00 
33,600.00 
32,000.00 
28,880.00 
26,560.00 
23,040.00 
23,040.00 
9, 600. 00 
5, 280. 00 
4, 160. 00 



Acres. 



1,920.00 
4,480.00 



1,920.00 



1, 280. 00 



Acres. 
59, 840. 00 
63,920.00 
55, 440. 00 
54,920.00 
45,680.00 
43, 160. 00 
25,040.00 
30, 880. 00 
31,240.00 
25, 640. 00 
20,920.00 
24,840.00 
22,800.00 
22,480.00 
8,600.00 
5,280.00 
4, 160. 00 



Acres. 

12, 160. 00 

560. 00 

6,880.00 

4, 120. 00 

5,680.00 

1,640.00 

11,720.00 

5,280.00 

4,280.00 

6,360.00 

7,880.00 

1.720.00 

240. 00 

560. 00 

2,280.00 



607,600.00 



9,600.00 



545,840.00 



71,360.00 



Above statement embraces no portion of the ceded Ute Indian lands, which were 
opened to disposition under the acts of June 15, 1880, and February 20, 1895. 

Acreage of school sections or parts thereof within national parks, and Indian reservations, 
also within ceded Ute Indian lands. 

Rocky Mountain National Park (created by the act of Jan. 26, 1915): 

Surveyed..... 14,320 

Used as base 13, 920 

Not offered as base 400 

Total -- 14,320 

Mesa Verde National Park (created by the act of June 29, 1906) : 

Surveyed (all used as base) 2, 080 

Southern Ute Indian Reservation : 

Surveyed - 21, 120 

Used as base 13, 680 

Not offered as base 7, 440 

Total 21, 120 

Ute Indian Reservation lands opened to disposition under the acts of June 15, 1880 {21 
Stat., 199), and Feb. 20, 1895 {28 Stat., 677). 

Surveyed 615, 360 

U'nsurveyed 51, 840 

Total 667, 200 

Used as base 643, 680 

Not offered as base 23, 520 

Total 667, 200 

A.creage of school sections or parts thereof within other withdrawals or reserves, or classi- 
fied as valuable for coal. 

Reclamation (first form) 3, 320 

Coal 254,960 

Power 800 

No pending selections have been found embracing lands reserved, withdrawn, or 
•classified as valuable for minerals. 



64 



LANDS FOE EDUCATIONAL PURPOSES. 



The State of Washington. 

[Enabling act of Feb. 22, 1889 (25 Stat., 676).] 
Areas of school sections within national forests. 



Columbia . . . 
Rainier 

Washington. 
Snoqualmie . 
Wenatchee. . 

Chelan 

Colville 

Kaniksu 

Wenaha 

Olympic 



Total. 



Forests. 



Surveyed. 



Acres. 
17, 339. 73 
19, 187. 69 

9,958.19 
16,063.98 
37,992.54 

9, 726. 80 

4, 885. 81 
10,665.36 

3, 1.57. 72 
12,734.25 



158, 712. 07 



Unsurveyed. 



Acres. 
35, 520. 00 
72, 343. 88 
82,657.50 
47, 480. 00 
45, 822. 00 
105, 760. 00 
22, 720. 00 
10, 240. 00 
12, 160. 00 
39, 800. 00 



474,503.78 



Used as base 
for selections: 



Acres. 

5,120.00 
31,496.86 
24,026.56 

3,200.51 
13,033.40 
10, 507. 07 



1,240.00 
'4,'i52.'86' 



92, 777. 20 



Not offered 
as base." 



Acres. 
47, 739. 73 
60,034.71 

68. 589. 13 
60, 343. 47 

70. 781. 14 
104,979.73 

44,605.81 
19,665.36 
15, 317. 72 
48, 381. 55 



540,438.25 



Acreage of school sections or parts thereof within national parks and military reserves. 

Mount Rainier National Park (created by act of Mar. 2, 1899): 

Surveyed 5, 120. 00 

Unsurveyed 5, 760. 00 

Total 10, 880. GO 



Used as base 8, 839. 66 

Not offered as base 2, 040. 34 



Total 10, 880. 00 



Mount Olympus National Park (created by proclamation of Mar. 2, 1909): 

Surveyed 1, 208. 17 

Unsurveyed 32,320.00 

Total 33,528.17 



Used as base 15, 811. 27 

Not offered as base .- 17, 716. 90 



Total 33, 528. 17 

Colville Indian Reservation: 

Surveyed 75, 981. 66 



Used as base 30, 364. 55 

Not offered as base 45, 617. 11 



Total 75, 981. 66 



Yakima Indian Reservation: 

Surveyed 67, 659. 88 



Used as base 21, 418. 51 

Not used as base 46, 241. 37 



Total. 67, 659. 88 

Spokane Indian Reservation: 

Surveyed (none used as base) 6, 512. 51 

Queniult Indian Reservation: 

Surveyed (none used as base) . . . 9, 842. 09 



LANDS POE EDUCATIONAL PUEPOSES. 



65 



Acreage of school sections or parts thereof within other withdrawals or reserves, or classified 

as valuable for coal. 

Keclamation, first form 67, 083. 75 

Reclamation, second form 4, 547. 19 

Military reserves 73. 50 

Bird reserves 280. 00 

Coal 28, 632. 17 

Power 3, 981. 30 

It is also found that there are 3,772. 90 acres of pending school-land indemnity- 
selections within areas withdrawn or classified as coal lands, 160 acres of such selections 
within national forests, and 160 acres of selections within power-site reserves. No 
pending selections have been found embracing lands otherwise withdrawn. 

The State of Montana. 

[Enabling act of Feb. .22, 1889 (25 Stat., 676) .] 

Areas of school sections loithin national forests. 



Forests. 


Surveyed. 


Unsurveyed. 


Used as base 
for selections. 


Not offered 
as base. 




Acres. 

5, 120. 00 
16, 800. 51 
17, 370. 76 
13, 433. 28 

4, 040. 48 
26,495.33 
19, 894. 60 
19, 723. 62 
16,968.85 
18, 743. 83 
22, 153. 31 
29, 509. 93 
29,489.83 
33,383.62 

9,093.28 
28, 423. 87 

1, 840. 00 


Acres. 

70,940.00 

44,040.00 

39,680.00 

38, 400. 00 

38, 071. 52 

36,017.82 

5, 120. 00 
33, 280. 00 
100,494.08 
26, 080. 00 
30, 720. 00 
37,280.00 
60, 800. 00 
36, 120. 00 
51,200.00 
45,760.00 

2, 560. 00 
49,600.00 


Acres. 
63,002.97 
46, 060. 84 

3,756.06 
43, 578. 54 
39, 832. 42 
440. 00 
18, 536. 01 
43, 613. 04 
34, 183. 62 
37,774.81 
47,475.31 
53,993.77 
780. 83 
11,565.30 
42, 964. 42 
30,699.29 

3, 661. 82 
47,642.59 


Acres. 
13,067.03 




14, 789. 67 


Blackfeet 


53, 294. 69 


Absaroka 


8,254.74 




2, 279. 58 


Cabinet 


62, 073. 15 


Custer 


6, 479. 59 




9, 390. .58 


Flathead 


83, 279. 31 




7, 049. 02 


Helena 


5,398.00 


Jefferson 


12, 796. 16 




89, 509. 00 




57, 938. 32 


Madison 


17, 328. 86 




43, 484. 58 


Sioux 


738. 18 




1,957.41 








Total 


312, 485. 09 


746, 163. 42 


569, 546. 64 


489, 107. 87 







Acreage of school sections or parts thereof within national parks, Indian reservations, and 

military reserves. 

Yellowstone National Park (created by act of Mar. 1, 1872): 

Unsurveyed 7, 866. 00 

Used as base .■ 4, 967. 00 

Not offered as base 2, 899. 00 

Total 7, 866. 00 

Glacier National Park (created by act of May 11, 1910): 

Surveyed 3, 472. 48 

Unsurveyed 51, 628. 47 

Total 55, 100. 95 

Used as base 46, 375. 93 

Not offered as base 8, 725. 02 

Total 55, 100. 95 



H. Rept. 779, 64-1 5 



66 LANDS FOE EDUCATIONAL PURPOSES. 

Blackfeet Indian Reservation: 

Surveyed 83, 999. 05 

Used as base 79, 382. 08 

Not offered as base ' 4, 616. 97 

Total - 83, 999. 05 

Crow Indian Reservation: 

Surveyed 105, 407. 95 

Unsurvej^ed 24, 960. 00 

Total 130, 367. 95 

Used as base 84, 080. 98 

Not offered as base 46, 286.^97 

Total 130, 367. 95 

Fort Belknap Indian Reservation: 

Surveyed 1, 722. 61 

Unsurveyed 24, 426. 65 

Total 26, 149. 26 

Not offered as base 26, 149. 26 

Fort Peck Indian Reservation (opened to entrv bv proclamation of July 
25 .1913, 42 L. D., 264, pursuant to the act of May '30, 1908, 35 Stat., 558): 

Surveyed and now available as base 1, 886. 01 

Used as base for pending selections 1, 862. 08 

Not offered as base 23. 93 

Total 1, 886. 01 

Fort Keogh. Military Reserve (created by Executive orders of Mar. 14, 
1878, and Jan. 22, 1909): 

Surveyed (none used or offered as base) 4, 327. 17 

Acreage of school sections or parts thereof within other withdrawals or reserves, or classified 
as valuable for coal or other minerals. 

Reclamation, first form 27, 486. 92 

Reclamation, second form 39, 021. 82 

Coal 1, 097, 357. 48 

Phosphate - 7, 880. 00 

Power 5, 636. 31 

Water 200. 00 

It is also found that there are 94,197.29 acres of pending school land indemnity 
selections within areas withdrawn or classified as coal lands. No pending selections 
have been found embracing lands otherwise withdrawn. 

The State op South Dakota. 

[Enabling act of Feb. 22, 1889 (25 Stat., 767).] 

Acreage of school sections or parts thereof within national forests, national parks, and 

Indian reservations. 

Black Hills National Forest: 

Surveyed ~. 33, 744. 77 

Unsurveyed 26, 640. 21 

Total 60, 384. 98 

Used as base 36, 904. 98 

Not offered as base 23, 480. 00 

Total 60, 000. 98 



LANDS FOE EDUCATIONAL PURPOSES, 67 

Sioux National Forest: 

Surveyed 4, 120. 00 

Used as base 3, 320. 00 

Not offered as base 800. 00 

Total 4, 120. 00 

Wind Cave National Park: 

Surveyed (all used as base) 960. 00 

Crow Creek Indian Reservation: 

Surveyed (all used as base) 17, 635. 25 

Lower Brule Indian Reservation: 

Surveyed (all used as base) 11, 480. 00 

Rosebud Indian Reservation: 

Surveyed 48, 280. 72 

Used as base 24, 103. 75 

Not offered as base 24, 176. 97 

Total 48, 280. 72 

Pine Ridge Indian Reservation: 

Surveyed 137, 323. 86 

Used as base 134,716.08 

Not offered as base 2, 607. 78 

Total 137, 323. 86 

Cheyenne River Indian Reservation: 

Surveyed.. .' 62, 798. 99 

Used as base 34, 057. 36 

Not offered as base 28, 741. 63 

Total 62, 798. 99 

Standing Rock Indian Reservation: 

Surveyed 40, 080. 35 

Used as base 12, 018. 53 

Not offered as base 28, 061. 82 

Total 40, 080. 35 

Acreage of school sections or parts thereof within other withdrawals or reserves or classified 

as valuable for coal. 

Reclamation, first form 9, 600 

Coal 14,780 

Bird reserves 640 

It is also found that there are 29,607.86 acres of pending school land indemnity 
selections within national forests and 11,239.08 acres of selections within areas with- 
drawn or classified as coal lands. No pending selections have been found embracing 
lands otherwise withdrawn. 

The selections reported as pending within national forests were made in lieu of 
school sections within national forests, under authority of the President's proclamation 
of February 15, 1912 (37 Stat., 1729). 



68 



LAls^DS FOE EDUCATIOIirAL PUEPOSES. 



The State of North Dakota. 

[Enabling act of Feb. 22, 1889 (25 Stat., 676).] 
Acreage of school sections or parts thereof within national forests and Indian reservations. 

Turtle Mountain Indian Reservation: 

Surveyed (all used as base) 2, 560. 00 

Standing Rock Indian Reservation (opened to entry under act of Feb. 14, 
1913; 37 Stat., 675, on May 19, 1915): 

Surveyed (none used or offered as base) 31, 075. 33 

Dakota National Forest: 

Surveyed (none used as base) 640. 00 

Fort Berthold Indian Reservation (diminished): 

Surveyed (none used or offered as base) 23, 709. 22 

The school lands formerly in said Fort Berthold Indian Reservation, and within 
the portion opened to entry on May 4, 1912, under act of June 1, 1910 (36 Stat., 455), 
are as follows: 

Surveyed •- 31, 419. 94 

Offered as base - 19,180.92 ■ 

Not offered as base 12, 239. 02 

Total 31, 419. 94 

" Nine thousand nine hundred and sixty acres of these school sections, or parts thereof, 
have been allotted to Indians, and 14,318.72 acres are found to have been classified 
as coal lands at fixed prices. 

Acreage of school sections or parts thereof ivithin other ivithdrawals or reserves or classified 

as valuable for coal . 

Coal - - 978, 629. 82 

There are found to be 280 acres of pending school-land indemnity selections within 
areas withdrawn or classified as coal land, but no pending selections have been found 
embracing lands otherwise withdrawn. 

The State of Idaho. 

[Enabling act of July 3, 1890 (26 Stat., 215).] 

Areas of school sections within national forests. 



Forests. 



Surveyed. 



Unsurveyed. 



Used as base 
for selections. 



Not offered 
as base. 



Boise 

Cache 

Caribou 

Chains 

Clearwater 

Coeur d'Alene. 

Idaho 

Kaniksn 

Lemhi 

Minidoka 

Nez Perce 

Palisade 

Payette 

Pend Oreille . . 

Pocatello 

St. Joe 

Salmon 

Sawtooth 

Selway 

Targhee 

Weiser 



Acres. 
28, 848. 97 



3, 840. 00 

4, 480. 00 

8, 960. 00 

33,392.77 

10. 880. 00 
25,391.23 

640. 00 
8,960.00 

15,035.92 
7, 668. 80 

23,923.03 

33. 799. 01 
11,192.50 
28, 171. 53 

4, 870. 23 
7, 680. 00 



17, 767. 88 
23,680.00 



A ores. 
31, 360. 00 
13, 760. 00 
28, 800. 00 
67, 840. 00 
35, 840. 00 

7, 040. 00 
56, 000. 00 

1,920.00 
63, 760. 00 
19, 600. 00 
78, 880. 00 

7, 680. 00 
21,494.80 
14,080.00 

3,200.00 
25, 840. 00 
92, 920. 00 
59, 840. 00 
99, 200. 00 
23,260.00 

7, 680. 00 



Acres. 
49, 495. 83 
12, 134. 83 
20, 024. 36 
66, 810. 03 
22, 446. 53 
24, 052. 28 
54, 489. 80 

9, 760. 00 
58, 795. 71 
11,335.20 
87, 714. 93 
14, 537. 71 
28,649.29 
28,301.93 

4,240.00 
23,726.31 
50, 601. 48 
51,176.81 
88, 950. 13 
22, 985. 59 

5, 760. 00 



Acres. 
10, 713. 14 

1,625.17 
12,615.64 

5, 509. 97 
22, 353. 47 
16,380.49 
12,390.20 
17,551.23 

5,604.29 
17, 224. 80 

6,200.99 
811. 09 
16, 768. 54 
19, 577. 08 
10, 152. 50 
30,285.22 
47, 188. 75 
16,343.19 
10, 249. 87 
18, 042. 29 
25, 600. 00 



Total . 



299, 181. 87 



759, 994. 80 



735,988.75 



323, 187. 92 



LANDS FOR EDUCATIONAL PUEPOSES. 69 

Acreage of school sections, or parts thereof, within national parks and Indian reservations . 

Yellowstone National Park (created by act of Mar. 1, 1872): 

Unsurveyed (all used as base) 1, 600. 00 

Fort Hall Indian Reservation: 

Surveyed 32, 083. 22 

Used as base 935. 05 

Not offered as base 31, 148. 17 

Total 32, 083. 22 

Duck Valley Indian Reservation: 

Surveyed 1, 280. 00 

Unsurveyed 2, 560. 00 

Total 3, 840. 00 

Used as base 3, 200. 00 

Not offered as base 640. 00 

Total 3, 840. 00 

Acreage of school sections, or parts thereof, within other ivithdrawals or reserves, or classified 

as valuable for coal. 

Reclamation, first form 28, 995. 17 

Reclamation, second form 18, 680. 00 

Coal 18, 760. 00 

Phosphate 51, 207. 92 

Power 2, 330. 26 

Water 640. 00 

Bird reserves 2, 382. 97 

Acreage of pending school land indemnity selections ivithin the boundaries of various 
ivithdraivn areas, or classified as valuable for coal or phosjyhate. 

National forests. 231, 012. 45 

Power-site reserves 1, 034. 08 

Phosphate 128, 554. 79 

Coal 7, 223. 84 

Practically all the selections reported as within national forests were made in lieu 
of unsurveyed school sections within national forests, under authority of the Presi- 
dent's proclamations of June 4, 1912 (37 Stat., 1743), and March 3, 1913 (37 Stat., 
1777). 

The State of Wyoming. 

[Enabling act of July 10, 1890 (26 Stat., 222).] 

Areas of school sections within national forests. 



Forests. 



Surveyed. 



Unsurveyed. 



Used as base 
for selections. I 



Not offered 
as base. 



Big Horn 

Medicine Bow. 

Shoshone 

Teton 

Wyoming 

Bridger 

Bonneville 

Washakie 

Hayden 

Sundance ..... 

Palisade 

Targhee 

Caribou 

Black HiUs..., 



Total. 



Acres. 
48,000 
27,040 
15,465 
23, 360 
22, 720 
8,960 
18, 820 
14, 720 
21,440 
10, 330 



360 
640 

211, 850 



Acres. 
14,400 



89, 600 
64,000 
32,000 
13,440 
35, 200 



11, 520 
2,560 



262, 720 



Acres. 

59, 680 

24, 520 

100, 800 

85, 800 

50, 920 

22,200 

53, 240 

13,280 

11,480 

7,180 

11,200 

2,160 

360 

600 

443,420 



Acres. 

2,720 

2,520 

4,265 

1,560 

3,800 

200 

780 

1,440 

9,960 

3,150 

320 

- 400 

"46 

31,150 



70 



LAXDS FOE EDUCATIONAL PUEPOSES. 



Acreage of school sections or parts thereof within national paries, Indian reservations, and 

military reserves. 

Yellowstone National Park (created by act ol Mar. 1, 1872): 

Unsurveyed 104, 640 

Used as base 103, 680 

Xot offered as base 960 

Total 104, 640 

Shoshone Indian Reservation: 

Surveyed 28, 160 

Unsurveyed 16, 640 

Total 44, 800 

Used as base 44, 480 

Not offered as base : 320 

Total 44, 800 

Fort.D. A. Russell Target and Maneuver Reserve (created by Executive 
orders of Oct. 9, 1903, and Apr. 19, 1910): 
Surveyed (all used as base) 2, 560 

Acreage of school sections or parts thereof within other withdraivals or reserves, or classified 
as valuable for coal or phosphate. 

Petroleum 11, 320 

Reclamation, first form 17, 840 

Reclamation, second form 15, 600 

Coal 656, 280 

Phosphate 11, 320 

Power 80 

It is also found that there are 11,120 acres of pending school land indemnity selec- 
tions within areas withdrawn or classified as coal lands, 480 acres of such selections 
within areas withdrawn or classified as phosphate lands, and 5,080 acres of selections 
within water I'eserves. No pending selections have been found embracing lands 
otherwise withdrawn. 

The State of Utah. 

[Enabling act of July 16, 1894 (28 Stat., 107).] 

Areas of school sections ivithin national forests. 



Forests. 



Surveyed. 



Unsurveyed. 



Used as base 
for selections. 



Not offered 

as base. 



I Acres. 

Po-svell : 5, 761. 92 

LaSalle ' 7, 151. 61 

Nebo ! 9,383.16 

FisMake ' 46, 709. 23 

Manti i 28, 840. 79 

Wasatch I 4, 464. 47 

Fillmore -56, 772. 95 

Sevier i 40, 622. 38 

Dixie i 17,780.95 

Cache j 22, 247. 08 

Minidoka i 8, 336. 42 

Pocatello I 2, 077. 13 

Uintah (former Uintah Indian Reservation) 73,982. 56 

Uintah (outside former Uintah Indian Reserva- ! 

tion) : 36, 692. 68 

Ashley (former Uintah Indian Reservation) 34, 691. 41 

Ashley (outside former Uintah Indian Reserva- I 

tion) : 9, 982. 00 

Total 405, 496. 64 



Acres. 
76, 060. 00 
49, 120. 00 

8, 520. 00 
26, 720. 00 
53, 280. 00 
24,300.00 
21, 440. 00 
44, 194. 00 
30, 180. 00 
11, 800. 00 

1, 280. 00 



45, 266. 12 
57,941.36 



Acres. 
69,364.02 
32, 040. 00 

7, 640. 00 
20, 147. 55 
50, 865. 70 
20, 880. 00 
15, 44a 00 
48, 857. 28 
22,639.68 
13, 440. 00 

1,040.00 

80.00 

62,249.05 

50, 494. 05 
33,036.24 

51, 438. 61 



450, 101. 48 



499, 652. 18 



Acres. 
12, 477. 90 
24,231.61 
10, 263. 16 
53, 281. 75 

31. 255. 09 
7, 884. 47 

62, 772. 95 

35. 959. 10 
25', 321. 27 
20, 607. 08 

8, 576. 42 
1,997.13 
11, 733. 50 

31, 464. 76 
1, 655. 07 

16, 484. 75 



355, 966. 01 



LANDS FOK EDUCATIONAL PUKPOSES. 71 

Acreage of school sections or parts thereof (in addition to such lands noio within national 
forests) which were embraced in the former Uintah Indian Reservation. 

[Opened to entry by acts of May 27, 1902, 32 Stat., 245; and Mar. 3, 1905, 33 Stat., 1048-1069.] 
Surveyed 164, 735. 59 

Used as base 150, 819. 91 

Not offered as base 13, 915. 68 

Total 164, 735. 59 

Reference is hereby made to the Secretary's decision of June 13, 1905 (33 L. D., 
610), which held as follows: 

"In regard to the grant in place, which grant was made by the act of July 16, 1894 
(28 Stat., 107), of sections 2, 16, 32, and 36, in each township in said State, it is the 
opinion of the department that not only technical rules of statutory construction, 
but also the general scope of legislation bearing upon the disposal to be made of the 
unallotted portion of this reservation, and the policy of the tJnited States in respect 
to public schools and also to Indians, call for the denial of any claim on the part of 
the State to any portion of its school grant in place within the limits of this reserva- 
tion. Further, that the reasons controlling the decision just arrived at prevent the 
recognition of any claimed right on the part of the State to select indemnity from 
the surplus lands of this reservation in further satisfaction of the school grant, prior 
to the opening thereof, under the provisions of the act of March 2, 1895 (28 Stat., 876, 
899), or at all. (See Minnesota v. Hitchcock, 185 U. S., 373.) 

The State acquiesced in this holding, and has tendered selections in lieu of the 
greater portion of the lands in designated school sections within the boundaries of 
said former reservation. 

Acreage of school sections or parts thereof within national parhs, bird reserves, and Indian 

reservations. 
Mukumtweap National Park: 

Unsurveyed (none used as base) 640. 00 

Strawberry Valley Bird Reserve: 

Unsurveyed (none used as base) 840. 00 

Navajo Indian Reservation: 

Surveyed 9, 132. 41 

Unsurveyed 61, 898. 94 

Total 71, 031. 35 

Not offered as base 71, 031. 35 

Kaibab and Piute Indian Reservation: 

Unsurveyed (none used as base) 60, 640. 00 

Shebit Indian Reservation: 

Unsurveyed (none used as base) 2, 560. 00 

Utah Indian Reservation: 

Surveyed 1, 920. 00 

Unsiu'veyed 1, 280. 00 

Total 3, 200. 00 

Not offered as base 3, 200. 00 

Acreage of schools sections or parts thereof within other withdrawals or reserves or classified 
as valuable for coal or phosphate. 

Reclamation, first form 123, 827. 72 

Reclamation, second form 2, 810. 00 

Coal 753,842.82 

Phosphate 3, 584. 03 

Power 6, 600. 00 

Petroleum 202, 511. 90 



72 



LAXDS FOE EDUCATIOXAL PUEPOSES. 



Acreage of pending school-land indemnity selections within the boundaries of various 
withdrawn areas or those classified as valuable for coal or other minerals. 

Coal 16,527.64 

Phosphate 280. 00 

Power sites 738. 21 

Water reserves 674. 60 

Petroleum 678. 22 

Military reserves 681. 22 

Reclamation (first form) 1, 096. 57 

Kational forests 643. 73 



School sections within national forests. 





Surveyed. 


Unsurreyed. 


Used as base. 


Not offered. 


California 


Acres. 
946, 702. 06 
433,413.31 
607,600.00 
158, 712. 07 
312,485.09 

37,864.77 

640.00 

299,181.87 

211, 850. 00 

405,496.64 


A cres. 
139,227.84 
266,695.88 
9, 600. 00 
474,503.78 
746,163.42 

S6,640.21 


Acres. 
572,303.82 
377, 330. 14 
54.5,840.00 

92,777.20 
569,546.64 

40,224.98 


Acres. 
513, 626. OS 


Oregon 


322,779.05 




71,360.00 


"n'ashington . .. 


540,438.25 




469,107.87 


South Dakota 


24,280.00 




640.00 




759,994.80 
272,720.00 
450,101.48 


735,988.75 
443,420.00 
499,652.18 


323, 187. 92 




31, 150. 00 


Utah 


355,966.01 






Total 


3,413,94.5.81 


3, 135, 647. 41 


3,877,083.71 


2, 672, 535. 18 







SUMMARY. 

Acres. 

Sun-eved 3, 413, 945. 81 

Unsufveyed 3, 135, 647. 41 

Total 6, 549, 593. 22 

Tabulation of the statement prepared in the spring of 1914,_ sh-oivin'g selections made in 
lieu of school sections within national forests; also showing neiv selections filed since 
such original statement ivas compiled. 





Approved 

surveyed 

base. 


Approved 

lonsurveyed 

base. 


Pending 

siuT^eyed 

base. 


Pending 

unsurveyed 

base. 




Acres. 
68,000.00 
475,500.00 


Acres. 
168,800.00 

54,000.00 
188, 600. 00 
228,400.00 
232,000.00 
2. 500. 00 
355,000.00 
104,000.00 
297,000.00 


Aares. 
222, 000. CO 
30. 200. 00 

5,000.00 
43. 100. 00 

6,300.00 
19,500.00 


Acres. 
42. 600. 00 




2,200.00 




493, 200. 00 




7,200.00 

106,600.00 

9, 000. 00 

16, 600. 00 


166,900.00 




7, 200. 00 


South Da'^ota 


8,200.00 


Utah 


31,300.00 






16,500.00 




129,000.00 


57,400.00 


23,600.00 






Total 


811,900.00 


1,630,300.00 


383,500.00 
4,285.35 
12, 835. 32 


791, 700. 00 




112, 883. 30 








24,451.06 










Total to April, 1915 


811,900.00 


1,630,300.00 


400, 620. 67 


929,034.36 







SUMMARY. 
Approved: ■ Acres. An-es. 

Surveyed 811,900.00 

Unsurveved 1 , 630, 300. 00 

2, 442, 200. 00 

Pending: 

Surveyed '. 400,620.67 

Unsurveyed 929,034.36 

1,329,655.03 

Total 3,771,855.03 

3477*6t 



LANDS FOE EDUCATIONAL PURPOSES. 73 

In explanation of apparent discrepancies in the foregoing tabulated statements, 
it should be kept in mind that many school sections or parts thereof now within 
national forests have been heretofore used as base for indemnity selections and the 
cause of loss designated in approved lists as "settlements " mineral or other cause. 
For example, further research discloses that in Utah 75,480 acres of selections have 
heretofore been approved on basis of lands designated in the clear lists as Uintah 
Indian Reservation lands, whereas same have since the opening of such reservation 
been included in national forests. 

CONCLUSION. 

It should be said, in conclusion, that in the compilation of the decisions of the courts 
and the department, such-selections only have been made as serve to show the present 
interpretation of the school grant, without undue citations from the abundance of 
authority found in the books; and that in the presentation of special features involved 
in the several grants, every effort has been made to secure such information as will 
be helpful to the department. 
Respectfully, 

Clay Tallman, Commissioner. 
July 27, 1915. 

The committee, therefore, believe that this legislation is most im- 
portant and settles the differences and controversies existing between 
the several States involved and the National Government which 
have been pending for many years and unanimously recommend an 
early and prompt consideration and passage of the bill by the House. 



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